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Full text of "North Carolina Register v.11 no. 5 (6/3/1996)"



NORTH CAROLINA 

REGISTER 



VOLUME 11 • ISSUE 5 • Pages 270 - 314 

June 3, 1996 



Fl 



mm - 



IN THIS ISSUE 

ouN ][ 9 1996 Executive Order 
Agriculture 
1ATHRINE R EVERET^Iy^onment, Health, and Natural Resources 
LAW llSRARY TnkuranrP 









Public Education 

Refrigeration 

Revenue 

Transportation 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1. 13 



NORTH CAROLINA 



IN THIS ISSUE 




I. EXECUTIVE ORDER 

Executive Order 95 . . 



Volume 1 1 , Issue £ 
Pages 270 - 3 1 4 



270 - 271 



II. RULE-MAKING PROCEEDINGS 

Environment, Health, and Natural Resources 

Wildlife Resources Commission 

Licensing Board 
Refrigeration Examiners 



272 
272 



m. PROPOSED RULES 

Environment, Health, and Natural Resources 

Health Services 

Transportation 
Deputy Secretary - Transit, Rail, and Aviation 
Highways, Division of 



273 - 274 

279 - 281 

274 - 279 



June 3, 1 996 



This issue contains documents officially 
filed through May 10, 1996. 



IV. TEMPORARY RULES 

Agriculture 

Food and Drug Protection Division 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Teresa Kilpatrick, Editorial Assistant 

Jean Shirley, Editorial Assistant 



282 



V. APPROVED RULES 

Insurance 

Actuarial Services Division 283 

Life and Health Division 283-284 

Public Education 

Departmental Rules 284 

Revenue 

Corporate Income and Franchise Tax Division . . 284 - 285 



VI. RULES REVIEW COMMISSION 286-294 

VII. CONTESTED CASE DECISIONS 

Index to ALI Decisions 295 - 299 

Text of Selected Decisions 

93 OSP 0707 300-307 

95 INS 1411 308-313 

Vin. CUMULATIVE INDEX 1-15 



Digitized by the Internet Archive 

in 2011 with funding from 

University of North Carolina at Chapel Hill 



http://www.archive.org/details/northcarolinareg115nort 





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EXECUTIVE ORDER 



EXECUTIVE ORDER NO. 95 
COUNCIL ON HEALTH POLICY INFORMATION 

WHEREAS, the value of reliable, timely, and 
comprehensive health information is crucial for policy- 
making and program management; and, 

WHEREAS, every effort must be made to remove 
obstacles which hinder the use of data by health policy 
makers; and, 

WHEREAS, interagency communication and 
cooperation is necessary for agencies responsible for the 
creation of effective health policy since no single umbrella 
agency has authority for all health programs; and, 

WHEREAS, North Carolina has been awarded 
funds from the Robert Wood Johnson Foundation to develop 
a comprehensive State health data plan to enhance the use of 
health data for policy decision-making and program manage- 
ment. 

NOW, THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of the State of 
North Carolina, IT IS ORDERED: 

Section 1. Establishment and Rescission. 

The Council on Health Policy Information ("the 
Council") is hereby established. Hunt Administration 
Executive Order 38 is hereby rescinded. This Council is the 
successor organization to that one. 

Section 2. Members of the Council. 

A. There shall be 37 members of the Council. 
The membership shall include the following persons or their 
designees: 

(1) State Health Director. DEHNR; 

(2) Governor's Advisor for Policy. Budget 
and Technology; 

(3) Director of the Division of Medical Assis- 
tance, DHR; 

(4) Director of the Office of State Planning, 
Office of the Governor; 

(5) State Budget Officer, Office of the Gover- 
nor; 

(6) Director of the Office of Rural Health and 
Resources Development, DHR; 

(7) Director of the Division of Aging, DHR; 

(8) Director of the Division of Social Ser- 
vices, DHR; 

(9) Director of the Division of Facility Ser- 
vices, DHR; 

(10) Director of the Division of Mental Health, 
Developmental Disabilities, and Substance 
Abuse, DHR; 

(11) Chair of the State Health Coordinating 
Council, DHR; 



(12) Chair of the Commission for Health Ser- 
vices, DEHNR; 

(13) Director of the Division of Maternal and 
Child Health, DEHNR; 

(14) Executive Director of the North Carolina 
Health Care Reform Commission; 

(15) Chair of the Minority Health Advisory 
Council, DEHNR; 

(16) Director of the Health Policy Unit of the 
Cecil G. Sheps Center for Health Services 
Research, University of North Carolina at 
Chapel Hill; 

(17) Director of the State Center for Health 
and Environmental Statistics, DEHNR; 

(18) Two representatives of certified statewide 
data processors doing business in North 
Carolina, named by the Governor; 

(19) Two representatives of private insurance 
companies doing business within North 
Carolina, named by the Governor; 

(20) One member of the North Carolina House 
of Representatives, named by the Gover- 
nor upon recommendation by the Speaker 
of the House; 

(21) One member of the North Carolina State 
Senate, named by the Governor upon 
recommendation by the President Pro 
Tempore of the Senate; 

(22) Commissioner of the Department of Insur- 
ance; 

(23) Commissioner of the Department of La- 
bor; 

(24) President of the North Carolina Health 
Care Facilities Association; 

(25) President of the North Carolina Associa- 
tion of Local Health Directors; 

(26) President of the North Carolina Hospital 
Association; 

(27) Executive Director of the North Carolina 
Association for Home Care; 

(28) Executive Director of the North Carolina 
Association of Long-Term Care Facilities; 

(29) President of the North Carolina Medical 
Society; 

(30) President of the Old North State Medical 
Society; 

(31) Director of the Duke University Center 
for Health Policy Research and Education; 

(32) President of North Carolina Citizens for 
Business and Industry; 

(33) President of the North Carolina Child 
Advocacy Institute; 

(34) Executive Director of the North Carolina 
Partnership for Children, Inc.; 

(35) Executive Director of the State Health 
Plan Purchasing Alliance Board. 

B. The Chair and Assistant Chair shall be selected 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



270 



EXECUTIVE ORDER 



by the members of the Council. All members shall serve at 
the pleasure of the Governor. All vacancies shall be filled 
by the Governor. 

Section 3. Functions. 

A. The Council shall meet monthly or at the call 
of the Chair. 

B. The Council shall submit to the Governor a 
State Health Data Plan which outlines: 

(1) how North Carolina can further enhance 
data-based health policy-making through improved health 
statistics and information systems; and 

(2) how best to institutionalize a process for 
collaborative health policy formulation and implementation. 

C. To execute its responsibilities, the Council shall 
have the power to: 

(1) collect existing program data and request 
additional data from public and private sources as needed; 

(2) hold public hearings; and 

(3) set up ad hoc committees. 



Section 4. Administration. 

A. Financial support for the Council shall be 
provided only through a grant from the Robert Wood 
Johnson Foundation, to be administered by DEHNR 
pursuant to the Executive Budget Act. 

B. Members of the Council shall be reimbursed 
for necessary travel and subsistence expenses as authorized 
under state law. Funds for such expenses shall be made 
available from funds provided by the grant from the Robert 
Wood Johnson Foundation. 

C . The continuation of this Executive Order, or 
any renewal or extension thereof, is dependent upon and 
subject to the availability of funds for the purposes set forth 
herein (See N.C.G.S. 143-34.2). 

This Executive Order shall become effective 
immediately. 

Done in Raleigh, North Carolina, this the 24th day 
of April 1996. 



271 



NORTH CAROLINA REGISTER 



June 3, 1996 



11:5 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The 
agency must publish a notice of the subject matter for public comment at least 60 days prior to publishing the 
proposed text of a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be 
found in the Register under the section heading of Temporary Rules. A Rule-making Agenda published by an 
agency serves as rule-making proceedings and can be found in the Register under the section heading of Rule- 
making Agendas. Statutory reference: G.S. 150B-21.2. 



TITLE ISA - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND NATURAL 

RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES 
COMMISSION 

\ Totice of Rule-making Proceedings is hereby given by 
ll the NC Wildlife Resources Commission in accordance 
with G.S. 150B-21.2. The agency shall subsequently publish 
in the Register the text of the rule(s) it proposes to adopt as 
a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC 10F . 0302. Other rules may be proposed in the 
course of the rule-making process. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 60 - BOARD OF 
REFRIGERATION EXAMINERS 

A Totice of Rule-making Proceedings is hereby given by 
1 V the State Board of Refrigeration Examiners in accor- 
dance with G.S. 150B-21.2. The agency shall subsequently 
publish in the Register the text of the rule(s) it proposes to 
adopt as a result of this notice of rule-making proceedings 
and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 
21 NCAC 60 .0204, .0207, .0314. Other rules may be 
proposed in the course of the rule-making process. 

Authority for the rule-making: G.S. 87-54; 87-57; 87-64 



Authority for the rule-making: G.S. 75A-3; 75A-15 



Statement of the Subject Matter: 

Regulations/Town of Atlantic Beach 



Local Water Safety 



Statement of the Subject Matter: 21 NCAC 60 .0204 and 
.0207 describe the licensing examination and set out 
requirements to sit for the exam. 21 NCAC 60 .0314 
regulates the manner in which the license may be used. 



Reason for Proposed Action: Amend Rules to regulate 
boat speeds in congested areas by establishing no-wake 
zones. 

Comment Procedures: The record will be open for receipt 
of written comments from June 3, 1996 through August 2, 
1996. Such written comments must be delivered or mailed 
to the North Carolina Wildlife Resources Commission, 512 
North Salisbury Street, Raleigh, North Carolina 27604- 
1188. 



Reason for Proposed Action: 21 NCAC 60 .0204 and 
. 0207 are proposed to be amended to establish requirements 
to sit for the transport refrigeration examination. 21 NCAC 
60 .0314 is proposed to be amended to clarify circumstances 
under which a refrigeration contractor 's license is required. 

Comment Procedures: Any interested person may submit 
written comments on the proposed rules by mailing the 
comments to Barbara Hines, PO Box 10666, Raleigh, NC 
27605, by August 2, 1996. 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



272 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency must 
publish a notice of rule-making proceedings. The agency must accept comments on the proposed rule for at least 
30 days from the publication date, or until the public hearing, or a later date if specified in the notice by the 
agency. The required comment period is 60 days for a rule that has a substantial economic impact of at least five 
million dollars ($5,000,000). Statutory reference: G.S. 150B-21.2. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

~\Totice is hereby given in accordance with G.S. 
ly 150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rule cited as 15A NCAC 18A 
.2601. Notice of Rule-making Proceedings was published in 
11:01 NCR 24. 

Proposed Effective Date: April 1, 1997 

A Public Hearing will be conducted at 1:30 p.m. on June 
26, 1996 at the Archdale Building - Ground floor Hearing 
Room, 512 N. Salisbury St. , Raleigh, NC. 

Reason for Proposed Action: This rule revision is proposed 
so that the rule will concur with Legislative changes brought 
about in the 1995 Legislative Session. Also, an address 
change is necessary due to our recent move. 

Comment Procedures: All persons interested in this matter 
is invited to attend the public hearing. Written comments 
may be presented at the public hearing or submitted to 
Grady L. Balentine, Department of Justice, PO Box 629, 
Raleigh, NC 27602-0629. All written comments must be 
received by July 3, 1996. Persons who wish to speak at the 
hearing should contact Mr. Balentine at (919) 733-4618. 
Persons who call in advance of the hearing will be given 
priority on the speaker 's list. Oral presentation lengths may 
be limited depending on the number of people that wish to 
speak at the public hearing. Only persons who have 
comments at a public hearing or who have submitted written 
comments will be allowed to speak at the Commission 
meeting. Comments made at the Commission meeting must 
either clarify previous comments or proposed changes from 
staff pursuant to comments made during the public hearing 
process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH SER- 
VICES THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT OR 
OPPOSE ANY OR ALL PROVISIONS OF THE PRO- 
POSED RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 



150B-2 1.2(f)- 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .2600 - SANITATION OF RESTAURANTS 
AND OTHER FOODHANDLING ESTABLISHMENTS 

.2601 DEFINITIONS 

The following definitions shall apply in the interpretation 
and enforcement of this Section: 

(1) "Approved" means determined by the Department 
to be in compliance with this Section. Food 
service equipment which meets National Sanita- 
tion Foundation standards or equal shall be con- 
sidered as approved. The National Sanitation 
Foundation Commercial Food Service Equipment 
Standards are hereby incorporated by reference 
including any subsequent amendments and edi- 
tions. This material is available for inspection at 
the Department of Environment, Health, and 
Natural Resources, Division of Environmental 
Health, 1330 St. Mary's Str ee t, 2728 Capital 
Blvd., Raleigh, North Carolina. Copies may be 
obtained from NSF International, P.O. Box 
13014, Ann Arbor, Michigan 48113-0140, at a 
cost of three hundred and twenty five dollars 
($325.00). Food which complies with require- 
ments of the North Carolina Department of 
Agriculture or United States Department of 
Agriculture and the requirements of this Section 
shall be considered as approved. 

(2) "Catered elderly nutrition site" means an estab- 
lishment or operation where food is served, but 
not prepared on premises, operated under the 
guidelines of the N.C. Department of Human 
Resources, Division of Aging. 

(3) "Commissary" means a food stand that services 
mobile food units and pushcarts. The commissary 
may or may not serve customers at the food 
stand's location. 

(4) "Department of Environment, Health, and Natural 
Resources" or "Department" means the North 



273 



NORTH CAROLINA REGISTER 



June 3, 1996 



11:5 



PROPOSED RULES 



(5) 



(6) 



(7) 



(8) 



(9) 



(10) 

(11) 

(12) 
(13) 
(14) 
(15) 



Carolina Department of Environment, Health, and 
Natural Resources. The term also means the 
authorized representative of the Department. 
"Drink stand" means those establishments in 
which only beverages are prepared on the pre- 
mises and are served in multi-use containers, such 
as glasses or mugs. 

"Eating and cooking utensils" means any kitchen- 
ware, tableware, glassware, cutlery, utensils, 
containers, or other equipment with which food or 
drink comes in contact during storage, prepara- 
tion, or serving. 

"Employee" means any person who handles food 
or drink during preparation or serving, or who 
comes in contact with any eating or cooking 
utensils, or who is employed at any time in a 
room in which food or drink is prepared or 
served. 

"Food" means any raw, cooked, or processed 
edible substance, ice, beverage, or ingredient used 
or intended for use or for sale in whole or in part 
for human consumption. 

"Food stand" means those food service establish- 
ments which prepare or serve foods and which do 
not provide seating facilities for customers to use 
while eating or drinking. Establishments which 
only serve such items as dip ice cream, popcorn, 
candied apples, or cotton candy are not included. 
"Hermetically sealed container" means a container 
designed and intended to be secure against the 
entry of micro-organisms and to maintain the 
commercial sterility of its contents after process- 
ing. 

"Limited food service establishment" means a 
food service establishment as described in G.S, 
130A-247(7). which operates for a total of 60 
or loss por year and more than 15 days per 



(16) 



days 

"Local Health Director" means the administrative 
head of a local health department or his autho- 
rized representative. 

"Mobile food unit" means a vehicle-mounted food 
service establishment designed to be readily 
moved. 

"Person" means any individual, firm, association, 
organization, partnership, business trust, corpora- 
tion, or company. 

"Potentially hazardous food" means any food or 
ingredient, natural or synthetic, in a form capable 
of supporting the growth of infectious or toxigenic 
microorganisms, including Clostridium botulinum. 
This term includes raw or heat treated foods of 
animal origin, raw seed sprouts, and treated foods 
of plant origin. The term does not include foods 
which have a pH level of 4.6 or below or a water 
activity (Aw) value of 0.85 or less. 
"Private club" means a private club as defined in 



G.S. 130A-247(2). 

(17) "Pushcart" means a mobile piece of equipment or 
vehicle which serves hot dogs or foods which 
have been prepared, pre-portioned, and individu- 
ally pre-wrapped at a restaurant or commissary. 

(18) "Responsible person" means the individual present 
in a food service establishment who is the appar- 
ent supervisor of the food service establishment at 
the time of inspection. If no individual is the 
apparent supervisor, then any employee is the 
responsible person. 

(19) "Restaurant" means all establishments and opera- 
tions where food is prepared or served at whole- 
sale or retail for pay, or any other establishment 
or operation where food is prepared or served that 
is subject to the provisions of G.S. 130A-248. 
The term does not include establishments which 
only serve such items as dip ice cream, popcorn, 
candied apples, or cotton candy. 

(20) "Sanitarian" means a person authorized to repre- 
sent the Department on the local or state level in 
making inspections pursuant to state laws and 
rules. 

(21) "Sanitize" means the approved bactericidal treat- 
ment by a process which meets the temperature 
and chemical concentration levels in 15A NCAC 
18A .2619. 

(22) "Sewage" means the liquid and solid human body 
waste and liquid waste generated by water-using 
fixtures and appliances, including those associated 
with foodhandling. The term does not include 
industrial process wastewater or sewage that is 
combined with industrial process wastewater. 

(23) "Single service" means cups, containers, lids, 
closures, plates, knives, forks, spoons, stirrers, 
paddles, straws, napkins, wrapping materials, 
toothpicks, and similar articles intended for 
one-time, one person use and then discarded. 

(24) "Temporary food establishment" means those food 
or drink establishments which operate for a period 
of 15 days or less, in connection with a fair, 
carnival, circus, public exhibition, or other simi- 
lar gathering. 

Authority G.S. 130A-248. 



TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to adopt rules cited as 19 A NCAC 
02D .1101 - .1112. Notice of Rule-making Proceedings was 
published in 10:23 NCR 2957. 



Proposed Effective Date: April 1, 1997 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



274 



PROPOSED RULES 



Instructions on How to Demand a Public Hearing (must 

be requested in writing within 15 days of notice): A demand 
for a public hearing must be made in writing and mailed to 
Emily Lee, Department of Transportation , P. O. Box 25201 , 
Raleigh, NC 27611. The demand must be received within 
15 days of this Notice. 

Reason for Proposed Action: Pursuant to G.S. 136.28.4, 
the Department is adopting rules to administer the DBE- 
MBE-WBE Programs which are currently operational in the 
Division of Highways. 

Comment Procedures: Any interested person may submit 
written comments on the proposed rules by mailing the 
comments to Emily Lee, Department of Transportation, P. O. £2) 

Box 25201, Raleigh, NC 27611, within 30 days after the 
proposed is published. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ( $5,000,000) in a 12-month period. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2D - HIGHWAYS 
OPERATIONS 

SECTION .1100 - DISADVANTAGED BUSINESS 

ENTERPRISE, MINORITY BUSINESS ENTERPRISE 

AND WOMEN BUSINESS ENTERPRISE 

PROGRAMS FOR HIGHWAY AND BRIDGE 

CONSTRUCTION CONTRACTS 

.1101 PURPOSE 

(a) The North Carolina Department of Transportation 
shall ensure that Disadvantaged Business Enterprises (DBE) 

have the maximum opportunity to participate in the perfor- (3) 

mance of contracts financed in whole or in part with Federal 

funds. 

(b) The North Carolina Department of Transportation 
shall ensure that Minority Business Enterprises (MBE) and 
Women Business Enterprises (WBE) have the maximum 
opportunity to participate in the performance of contracts 
financed with non-Federal funds. 

Authority G.S. 136-28.4; 143B-348. 

£4) 
.1102 DEFINITIONS 

For purposes of the rules in this Section, the following 
terms shall apply: 

(1) Socially and economically disadvantaged individ- 
ual means a person who is a citizen or lawful 
permanent resident of the United States and who (5) 

is: 

(a) A Black American: (6) 

(b) A Hispanic American: 



£ci 

m 
® 

isi 



An Asian-Pacific American; 
A Native American: 



An Asian-Indian American: 
A Woman: 

A member of another group or an individ- 
ual found to be economically and socially 
disadvantaged by the Small Business Ad- 
ministration under Section 8(a) of the Small 
Business Administration Act, as amended 
ri5 U.S.C. 637(d)!; 
(h) A member of another group, or an individ- 
ual found to be economically and socially 
disadvantaged by. the North Carolina De- 
partment of Transportation. 
Disadvantaged Business Enterprise (DBE) means 
a small business concern, as defined pursuant to 
Section 3 of the Small Business Act (15 U.S.C. 
632) and implementing regulations which is: 

(a) Owned and controlled by one or more 
socially and economically disadvantaged 
individuals; 

(b) A firm which has been found to be socially 
and economically disadvantaged by the 
Small Business Act under the 8(a) pro- 
gram: or 

(c) A firm which has been certified as socially 
and economically disadvantaged by the 
North Carolina Department of Transporta- 
tion except that such term shall not include 
any concern or group of concerns con- 
trolled by the same socially and economi- 
cally disadvantaged individual or individu- 
als which has average annual gross receipts 
over the preceding three fiscal years in 
excess of fourteen million dollars 
($14.000.000) as adjusted by. the Depart- 
ment for inflation. 

An Owned and Controlled Business means a 
business: 

(a) Which is at least 5 1 percent owned by one 
or more eligible individuals, or in case of 
a publicly owned business at least 51 per- 
cent of the stock is owned by one or more 
eligible individuals: and 

(b) Whose management and daily business 
operations are controlled by one or more of 
the eligible individuals who own it 

Eligible Individual means a socially and economi- 
cally disadvantaged individual as defined in this 
Rule on projects financed in whole or in part with 
Federal funds. On projects financed with non- 
Federal funds, eligible individual means a minor- 
ity or woman individual as defined in this Rule- 
Eligible Firm means a firm owned and controlled 
by an eligible individual as defined in this Rule. 
An eligible manufacturer means a firm owned and 
controlled by an eligible individual that operates 



275 



NORTH CAROLINA REGISTER 



June 3, 1996 



11:5 



PROPOSED RULES 



or maintains a factory or establishment which 
produces on the premises the materials or supplies 
obtained by the contractor. 

(7) An eligible regular dealer means a firm that owns, 
operates, or maintains a store, warehouse, or 
other establishment in which materials or su pplies 
required for the performance of the contract are 
bought, kept in stock, and regularly sold to the 
public in the usual course of business. To be an 
eligible regular dealer, the firm must engage in. 
as its principal business and in its own name, the 
purchase and sale of products in question. A 
regular dealer in such items as steel, cement, 
gravel, stone, and petroleum products need not 
keep such products in stock if it owns and oper- 
ates distribution equipment. Brokers and packag- 
ers shall not be regarded as manufacturers or 
regular dealers within the meaning of this Rule. 

(8) Minority means a citizen or lawful permanent 
resident of the United States who is: 

(a) A Black American; 

(b) A Hispanic American; 

(c) An Asian-Pacific American; 

(d) A Native American; or 

(e) An Asian-Indian American. 

(9) Minority Business (MB) means a business firm 
which is owned and controlled by one or more 
minorities, except that such term shall not include 
any concern or group of concerns controlled by 
the same minority individual or individuals which 
has average annual gross receipts over the preced- 
ing three fiscal years in excess of fourteen million 
dollars ($14.000.000) as adjusted by the Depart- 
ment for inflation. 

(10) Woman means a citizen or lawful permanent 
resident of the United States who is female. 

(11) Women Business (WB) means a business firm 
which is owned and controlled by one or more 
women, except that such term shall not include 
any concern or group of concerns controlled by 
the same female individual or individuals which 
has average annual gross receipts over the preced- 
ing three fiscal years in excess of fourteen million 
dollars ($14.000.000) as adjusted by the Depart- 
ment for inflation. 

Authority G.S. 143B-348. 

.1103 CERTIFICATION OF FIRMS 

(a) Any Disadvantaged Business Enterprise. Minority 
Business Enterprise, or Women Business Enterprise firms 
wishing to participate in the goals programs of the Depart- 
ment shall be certified by the Department. 

(b) The Department will conduct a certification review 
after it receives a completed Schedule A and checklist which 
is available at no cost from the Civil Rights and Business 
Development Section of the Contractual Services Unit. P.O. 



Box 25201, Raleigh, NC. telephone 919-733-2300. The 
certification review shall be conducted in accordance with 
the Code of Federal Regulations, 49 CFR 23. The stan- 
dards of eligibility shall be those prescribed by the Code of 
Federal Regulations, 49 CFR 23.53, which is hereby 
incorporated by reference including all subsequent amend- 
ments and editions. This publication is available at a cost 
of twenty-three dollars ($23.00) from the U.S. Government 
Printing Office. Superintendent of Documents. Mail Stop 
SSOP. Washington. DC 20402-9328. telephone 202-512- 
1800. 

Authority G.S. 136-28.4; 143B-348. 

.1104 ANNUAL RENEWAL OF CERTIFICATION 

(a) Each firm certified as a Disadvantaged Business 
Enterprise, Minority Business Enterprise, or Women 
Business Enterprise shall renew its certification annually. 
The annual review shall be conducted in accordance with the 
Code of Federal Regulations. 49 CFR 23. 

(b) In the event a firm fails to renew its certification 
within 15 months of the issuance of its most recent certifica- 
tion, that firm's name shall be removed from the Depart- 
ment's Disadvantaged/Minority /Women Business Enterprise 
Directory which is published monthly and can be obtained 
at no cost from the Division of Highways. P.O. Box 25201. 
Raleigh. NC 27611. telephone 919-733-2300. 

Authority G.S. 143B-348. 

.1105 CHANGE IN OWNERSHIP OR CONTROL 

(a) At any time there is a change of ownership or control 
of a firm certified with the Department, that firm shall 
submit a revised Schedule A which is available at no cost 
from the Civil Rights and Business Development Section of 
the Contractual Services Unit. P.O. Box 25201. Raleigh. 
NC 27611. telephone 919-733-2300. 

(b) The Department shall evaluate the firm using stan- 
dards of eligibility as prescribed in the Code of Federal 
Regulations. 49 CFR 23.53. 

Authority G.S. 143B-348. 

.1106 DECERTIFICATION 

(a) Each firm certified with the Department shall at all 
times comply with the standards of eligibility as prescribed 
in 49 CFR 23. 

(b) In the event the Department finds a firm in non- 
compliance with the standards of eligibility, that firm shall 
be decertified and its name removed from the Disadvan- 
taged/Minority Business Enterprise Directory. 

Authority G.S. 143B-348. 

. 1 107 APPEALS OF DENIAL OF CERTIFIC ATION 

(a) Any firm which believes it has been wrongly denied 
certification or which believes it has been wrongly decerti- 



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276 



PROPOSED RULES 



fied may file an appeal of that denial to the Department's 
Director of Civil Rights, P.O. Box 25201, Raleigh, NC 
27611, telephone 919-733-2300. 

(b) The filed appeal must be received by the Director of 
Civil Rights within 20 calendar days of the notice of denial. 
Upon receipt of the appeal, the Director shall schedule a 
hearing for the firm with the Department's DBE Appeals 
Committee. 

(c) If the denial of certification is upheld by the Appeals 
Committee, the firm may file a written appeal within 180 
days of the initial denial with the U.S. Department of 
Transportation, 400 7th Street, S.W., Washington, DC 
20590, telephone 202-336-1111, in accordance with the 
Code of Federal Regulations, 49 CFR 23.55. 

Authority G.S. 143B-348. 

.1108 GOALS 

'(a) For each highway or bridge construction project 
determined appropriate by the Department, a disadvantaged 
business enterprise goal or minority and women business 
enterprise goals shall be established. The goal or goals shall 
be prescribed in the project proposal as a percent of the 
bidder's bid price. 

(b) The Contractor shall exercise all necessary and 
reasonable steps to ensure that eligible firms participate in 
at least the percentage of the contract as required by the 
project proposal. 

Authority G.S. 136-28.4; 143B-348. 

.1109 COUNTING PARTICIPATION 

TOWARD MEETING THE GOAL 

(a) All bidders, at the time a bid proposal is submitted, 
shall also submit a listing of participation on the appropriate 
form, contained in the proposal, in order for the bid to be 
considered responsive. For a firm to be counted toward 
meeting the goal, the firm shall be certified by the Depart- 
ment as evidenced by a current letter of certification or by 
its listing on the current Disadvantaged/Minority/ Women 
Business Enterprise Directory, which is published monthly 
by the department and is available at no cost from the Civil 
Rights & Business Development Section, P.O. Box 25201, 
Raleigh, NC 27611, telephone 919-733-2300. 

(b) If a firm is determined to be an eligible firm and 
certified by the Department, the total dollar value of the 
participation provided by the firm shall be counted toward 
the goal. The total dollar value of participation by the 
certified firm shall be based upon unit or lump sum prices 
agreed upon by the prime contractor and the certified firm. 

(c) The Contractor may count toward its appropriate goal 
a portion of the total dollar value of participation with a 
joint venture eligible under the standards of this Rule equal 
to the percentage of the ownership and control of the 
eligible partner in the joint venture. 

(d) The Contractor may count toward its goal only the 
expenditures to the certified eligible firm that perform a 



commercially useful function in the work of a contract. An 
eligible firm is considered to perform a commercially useful 
function when it is responsible for execution of a distinct 
element of the work of a contract and carrying out its 
responsibilities by actually performing, managing, and 
supervising the work involved. To determine whether an 
eligible firm is performing a commercially useful function, 
the Department shall evaluate the amount of work subcon- 
tracted, industry practices, and other relevant factors. 

(e) A contractor may count toward its goal 60 percent of 
its expenditures for materials and supplies required to 
complete the contract and obtained from an eligible regular 
dealer, and 100 percent of such expenditures to an eligible 
manufacturer. 

(JQ A contractor may count toward its goal the following 
expenditures to eligible firms that are not manufacturers or 
regular dealers: 

(1) The fees and commissions charged for providing 
a bona fide service such as professional, techni- 
cal, consultant, or managerial services and assis- 
tance in the procurement of essential personnel, 
facilities, equipment, or supplies required for the 
performance of the contract, provided that the fee 
or commission is determined by the Department 
to be reasonable and not excessive as compared to 
fees customarily allowed for similar services. 

(2) The fees charged for the delivery of materials and 
supplies required on a job site (but not the cost of 
the materials and supplies themselves) when the 
hauler, trucker, or delivery service is not also the 
manufacturer of or a regular dealer in the materi- 
als and supplies, provided that the fee is deter- 
mined by the Department to be reasonable and not 
excessive as compared with fees customarily 
allowed for similar services. 

(3) The fees or commissions charged for providing 
any bonds or insurance specifically required for 
the performance of the contract provided that the 
fee or commission is determined by the Depart- 
ment to be reasonable and not excessive as com- 
pared with the fees customarily allowed for 
similar services. 

(g) For a given contract line item or contracts financed 
with non-federal funds, the Contractor shall designate the 
goal to which the total dollar value of participation awarded 
to a firm owned and controlled by a minority woman shall 
be credited. The total dollar value for such firms shall be 
credited to one goal only and shall not be split or duplicated 
between the Minority Business or Women Business goals. 

(h) On projects funded entirely with non-federal funds, 
should the contractor submit with his bid submittal participa- 
tion in excess of the goal(s) by an amount equal to or 
greater than one thousand dollars ($1,000), then the Depart- 
ment v.ill place on deposit for future use by the contractor 
the amount of participation in excess of the goal(s). 
Separate accounts will be maintained by the Department for 
minority and women goals. The contractor may accumulate 



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excess participation for a period not to exceed 24 months. 
Authority G.S. 136-28.4; 143B-348. 

.1110 NON- ATTAINMENT OF GOALS 

(a) When the low bidder fails to obtain the participation 
required to satisfy goals established in the project proposal, 
he shall submit information to demonstrate to the Depart- 
ment he has made sufficient reasonable good faith efforts to 
satisfy the goals. The submission shall be received by the 
Department on or prior to the date and time specified in the 
project proposal. The following factors will be evaluated by 
the Department prior to determining whether the contractor 
has demonstrated good faith efforts: 

(1) Whether the bidder attended any pre-bid meetings 
that were scheduled by the Department to inform 
eligible firms of subcontracting o pportunities; 

(2) Whether the bidder provided written notice to a 
reasonable number of eligible firms that their 
interest in the contract was being solicited; 

(3) Whether the bidder followed up initial solicitations 
of interest by contacting eligible firms to deter- 
mine with certainty they were interested; 

(4) Whether the bidder selected portions of the work 
to be performed by eligible firms in order to 
increase the likelihood of meeting the contract 
goals; 

(5) Whether the bidder provided interested eligible 
firms with adequate information about the plans, 
specifications, and requirements of the contract; 

(6) Whether the bidder negotiated in good faith with 
interested eligible firms not rejecting them as 
unqualified without sound reasons based on a 
thorough investigation of their capabilities; 

(7) Whether quotations were received from interested 
eligible firms but rejected as unacceptable without 
sound reasons why the quotations were considered 
unacceptable. For projects funded in whole or 
part with Federal funds, the fact that the DBE 
firm's quotation for the work is not the lowest 
quotation received shall not in itself be considered 
a sound reason for rejecting the quotation as 
unacceptable. Nothing in this Rule shall be 
construed to require the Contractor to accept 
unreasonable quotes in order to satisfy the goals; 

(8) Whether the bidder made efforts to assist inter- 
ested eligible firms in obtaining any required 
insurance; 

(9) Whether the bidder specifically negotiated with 
subcontractors to assume part of the responsibility 
to meet the contract goals. 

(b) In the event one bidder is the a pparent low bidder on 
two projects within the same letting and located in the same 
geographic area of the state, as a part of the good faith 
effort, the Department shall consider allowing the bidder to 
combine participation in like goals programs as long as the 
overall goal value of both projects is achieved. 



(c) In the event the a pparent low bidder on a project 
funded entirely with non-federal funds fails to meet the 
goal(s) required by the proposal, he may as a part of his 
good faith effort, request the Department to consider the 
withdrawal of sufficient in-kind participation previously 
deposited by him in accordance with Rule . 1 lQQfli) of this 
Section to satisfy the goal(s) requirement. 

(d) If the apparent low bidder fails to submit sufficient 
participation by eligible firms to satisfy the contract goals 
and upon determination by the Department based upon the 
information submitted that the apparent lowest responsive 
bidder failed to make sufficient reasonable efforts to meet 
the contract goals, the Board of Transportation may reject 
the bid. 

(e) In the event the Board of Transportation does not 
award the contract to the lowest responsive bidder, the 
Board of Transportation may award the contract to the next 
lowest responsive bidder that can satisfy the Department that 
the contract goals have been met or demonstrated a reason- 
able good faith effort to do so^ 

Authority G.S. 136-28.4; 143B-348. 

.1111 PERFORMANCE RELATED 

REPLACEMENT OF ELIGIBLE FIRMS 

The Department may allow replacement of an eligible 
firm for the following performance related reasons: 

(1) If an eligible firm listed by the contractor and 
submitted at the time of bidding does not perform 
in a satisfactory manner, the contractor shall make 
all necessary, reasonable efforts to replace the 
eligible firm with another eligible firm in the 
same category as the firm originally submitted. 

(2) Any substitution of eligible firms after award of 
the contract must be approved by. the D epartment. 
The contractor shall submit any requests for 
substitutions through the Resident Engineer, and 
the request must provide the basis or reason for 
the proposed substitution. 

(3) To demonstrate necessary, reasonable efforts, the 
contractor shall document the steps he has taken 
to replace eligible firms with other eligible firms. 
Such documentation shall include but not be 
limited to the following: 

(a) Copies of written notification to eligible 
firms that their interest is solicited in sub- 
contracting the work defaulted by the previ- 
ous subcontractor or in subcontracting other 
work in the contract; 

(b) Efforts to negotiate with eligible firms for 
specific sub-bids including at a minimum: 

(i) The names, addresses, and telephone 
numbers of eligible firms that were 
contacted; 
(ii) A description of the information 
provided eligible firms regarding the 
plans and specifications for portions 



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278 



PROPOSED RULES 



of the work to be performed; 

(c) A statement of why additional agreements 
with eligible firms were not reached; 

(d) For each eligible firm rejected as unquali- 
fied, the reasons for the contractor's con- 
clusion; and 

(e) Efforts made to assist the eligible firms 
contacted, if needed in obtaining bonding 
or insurance required by the contractor. 

(4) Failure of the contractor to demonstrate reason- 
able efforts to replace an eligible firm with an- 
other eligible firm shall be just cause to disqualify 
the contractor from further bidding for a period of 
up to six months after notification by certified 
mail. 

Authority G.S. 136-28.4; 143B-348. 

. 1 1 12 REPLACEMENT OF AN ELIGIBLE 

FIRM REMOVED BY DECERTIFICATION 

The Department may allow replacement of an eligible 
firm under the following conditions: 

(1) If the Department has approved a Request For 
Subcontract for a particular eligible firm, and that 
eligible firm is subsequently decertified by the 
Department, the Department shall not require the 
prime contractor to solicit replacement participa- 
tion equal to the remaining work to be performed 
by the certified firm. 

(2) If a prime contractor has a listed eligible firm in 
his low bid submittal and that firm is decertified 
prior to the Department approving a Request for 
Subcontract for the named eligible firm, the prime 
contractor shall be required to make a good faith 
effort in accordance with Rule ,111 1(3) of this 
Section to: 

(a) Replace the decertified firm with a certified 
firm; or 

(b) Obtain replacement participation in other 
areas of the work. 

Authority G.S. 136-28.4; 143B-348. 

******************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to adopt rules cited as 19 A NCAC 
06B .0401 - .0417. Notice of Rule-making Proceedings was 
published in 10:23 NCR 2957. 

Proposed Effective Date: April 1, 1997 

Instructions on How to Demand a Public Hearing (must 
be requested in writing within 15 days of notice): A demand 
for a public hearing must be made in writing and mailed to 
Emily Lee, Department of Transportation, P.O. Box 25201 , 



Raleigh, NC 27611. The demand must be received within 
15 days of this Notice. 

Reason for Proposed Action: Pursuant to G.S. 136-44.36, 
the Department is adopting rules to administer the Rail 
Industrial Access Program which is currently operational. 

Comment Procedures: Any interested person may submit 
written comments on the proposed rules by mailing the 
comments to Emily Lee, Department of Transportation , P. O. 
Box 25201, Raleigh, NC 27611, within 30 days after the 
proposed rules are published. 

Fiscal Note: These Rules affect the expenditure or distribu- 
tion of State funds subject to the Executive Budget Act, 
Article 1 of Chapter 143. These Rules do not have a 
substantial economic impact of at least five million dollars 
($5,000,000) in a 12-month period. 

CHAPTER 6 - DEPUTY SECRETARY - 
TRANSIT, RAIL, AND AVIATION 

SUBCHAPTER 6B - PUBLIC TRANSPORTATION 
AND RAIL DIVISION 

SECTION .0400 - RAIL INDUSTRIAL 
ACCESS PROGRAM 

.0401 DEFINITION OF PROGRAM 

For purposes of this Subchapter, the following definitions 
shall apply: 

(1) The term "Rail Industrial Access Program" or 
"RIAP" means the Department of Transportation 
program which provides funding to cover a 
portion of the costs of constructing or rehabilitat- 
ing railroad industrial access tracks to serve a new 
or expanded industry, 

(2) "Department" means the North Carolina Depart- 
ment of Transportation, 

(3) "Grantee" means the entity which receives a 
RIAP grant from DOT. 

(4) "Project" means the construction of a spur track 
and related facilities under the RIAP. 

Authority G.S. 136-44.36; 143B-350(f) and (g). 

.0402 IDENTIFYING INFORMATION 

Information related to RIAP may be obtained from: 

Director. Rail Division 

N.C. DOT 

P.O. Box 25201 

i South Wilmington Street 

Raleigh, NC 27611 
Telephone 919-733-4713 

Authority G.S. 136-44.36; 143B-350(f) and (g). 



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.0403 FUNDING RECIPIENTS 

The following organizations shall be eligible to apply for 
Rail Industrial Access Funding: 

(1) Municipal and county governments: 

(2) Non-profit or for-profit community development 
organizations: 

(3) Railroads; and 

(4) Industries. 

Authority G.S. 136-44.36; 143B-3 50(f) and (g). 

.0404 ELIGIBLE COSTS 

Costs eligible for RIAP funding are as follows: 

(1) Site preparation, including grading and drainage; 

(2) Track construction; 

(3) Switches; and 

(4) Grade crossings and signals. 

Authority G.S. 136-44.36; 143B-350(f) and (g). 

.0405 INELIGIBLE COSTS 

Costs which are not eligible for RIAP program costs are 
as follows: 

(1) Engineering; 

(2) Relocation of utilities; 

(3) Acquisition of rights of way; and 
£4} Rail dock. 

Authority G.S. 136-44.36; 143B-350(f) and (g). 

.0406 APPLICATION 

Candidates for RIAP funding shall complete and submit 
a funding application to the Department of Transportation- 
Copies of the application may be obtained from: 
Director, Rail Division 
North Carolina Department of Transportation 
P.O. Box 25201 
1 South Wilmington Street 

Raleigh. NC 27611 
Telephone 919-733-4713 



Authority G.S. 136-44.36; 143B-350(f) and (g). 

.0409 INDUSTRY CERTD7ICATION 

The industry shall certify that it will provide the jobs and 
rail traffic (carloads) indicated in the project application. 

Authority G.S. 136-44.36; 143B-350(f) and (g). 

.0410 APPLICATION EVALUATION 

The Department shall evaluate the following when 
recommending rail projects to the Board of Transportation 
for a pproval: 

(1) Employment created in first two years; 
Capital investment in first two years; 
Annual rail traffic; 



12] 
(41 



[51 
£61 



Whether the project is located in a county desig- 
nated as distressed by the North Carolina Depart- 
ment of Commerce as defined in G.S. 143B- 
437(b) or is eligible to receive Appalachian 
Regional Commission funding; 
Whether the project is served by a shortline 
railroad; and 

Impact on local or regional income or economic 
development. 



Authority G.S. 136-44.36; 143B-350(f) and (g). 

.0411 ALLOCATION OF FUNDING 

(a) After evaluation of public benefits, including new 
employment and capital investment and funding available, 
the Department may award yj3 to a maximum 50% of total 
project costs. Except as provided in Paragraph (b) of this 
Rule, a project shall receive no more than 20% of the 
annual budgeted funding for the RIAP in any fiscal year. 

(b) The North Carolina Board of Transportation may 
a pprove funding above the maximum for individual projects 
based on the following criteria: 

(1) Comparison of project costs, benefits, and grantee 
resources; and 

(2) Availability of funding. 



Authority G.S. 136-44.36; 143B-350(f) and (g). 

.0407 COUNTY AND CITY CERTIFICATION 

An applicant shall provide a certified copy of the resolu- 
tion of support from the county and city government (if 
a pplicable) to the Department. An interim letter of support 
may be accepted pending receipt of a formal resolution. 

Authority G.S. 136-44.36; 143B-350(f) and (g). 

.0408 REQWRED EASEMENT CERTIFICATIONS 

A property easement certification shall be provided by the 
a pplicant with the completed a pplication that provides 
written assurance that all required easements have or will be 
obtained. 



Authority G.S. 136-44.36; 143B-35O0 and (g). 

.0412 PROCUREMENTS 

All procurements shall be handled as follows: 

(1) Procurements shall be conducted through formal, 
competitive bidding; 

(2) Prior to advertising for bids, the Grantee shall 
submit the request for bids to the Department for 
review and a pproval; 

The Grantee shall solicit bids from at least three 
firms; 



01 

141 



(51 



The Grantee shall submit to the Department a 
certified tabulation of the bids received and a 
recommendation for bid award; 
The Department shall review and approve the bid 
prior to the execution of a contract between the 



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280 



PROPOSED RULES 



£6) 



Grantee and the selected bidder. The Grantee 
shall submit the following information when 
requesting bid approval : 

(a) Bid list; 

(b) Copy of proposed contract; 

(c) Certified tabulation of bids results; 

(d) Copy of signed bid submitted by the rec- 
ommended bidder; and 

After the Department approves a contract award, 
the Grantee shall submit a copy of the executed 
contract to the Department. 



Authority G.S. 143-129; 143B-350(f) and (g); 136-44.36. 

.0413 REQUESTS FOR REIMBURSEMENT 

(a) The Grantee may submit requests for reimbursement 
to the Department no more than once a month. 
£b) The Grantee shall submit monthly progress reports. 

(c) The Grantee shall submit invoices to the Department 
at the following address: 

Grants Administrator 
Public Transportation and Rail Divisions 
North Carolina Department of Transportation 
P.O. Box 25201 
Raleigh, NC 27611 
The Grantee shall submit invoices in the same format and 
detail as cost items appear in the project bid and construc- 
tion contracts. 

(d) The Grantee shall indicate on invoices the total costs 
for the invoiced period and specify the current amount due. 

(e) The Department shall examine requests for reim- 
bursement to verify that costs are necessary to accomplish 
the project and within the scope of the project as described 
in the approved project budget. 

Authority G.S. 143B-350(f) and (g). 

.0414 RETAEMAGE 

The Department may withhold a retainage of JO percent 
of the approved payment amount until the project is com- 
pleted and accepted and the final audit has been conducted. 

Authority G.S. 143B-350(f) and (g). 

.0415 OWNERSHIP AND MAINTENANCE 
RESPONSIBILITY 

(a) Once constructed, all rail industrial access tracks shall 
be owned by the Grantee or by the industry served. 

Cb) After construction, the track owner shall be responsi- 
ble for maintaining the project tracks. 

Authority G.S. 136-44.36; 143B-350(f) and (g). 

.0416 REPORTING REQUIREMENTS 

The grant recipient shall report to the Department as 
follows: 

(1) After each of the first two years following com- 



pletion, the grant recipient shall provide informa- 
tion verifying the industry's employment as 
indicated in the project application and industry 
certification; 
(2) For the first five years following project comple- 
tion, the grant recipient shall provide verification 
of the industry's rail use as indicated in the 
project application and industry certification. 

Authority G.S. 136-44.36; 143B-350(f) and (g). 

.0417 REPAYMENT 

(a) If the project tracks are abandoned, relocated, or sold 
without a grant assignment, the track owner shall repay the 
Department its contribution to the cost of construction and 
materials less depreciation. 

(b) The Grantee may be required to repay the Department 
if: 

(1) During the first five years rail use falls below the 
goal levels specified in the industry certification: 

(2) Job goals (as specified in the industry certifica- 
tion) for the first two years are not met. 

Authority G.S. 136-44.36; 143B-350(f) and (g). 



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TEMPORARY RULES 



The Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. 
Pursuant to G.S. 150B-21.1(e), publication of a temporary rule in the North Carolina Register serves as a notice of 
rule-making proceedings unless this notice has been previously published by the agency. 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

Rule-making Agency: North Carolina Board of Agricul- 
ture 

Rule Citation: 2 NCAC 9C .0701 - .0702, .0704 

Effective Date: May 13, 1996 

Findings Reviewed by Julian Mann, ID: Approved 

Authority for the rule-making: G.S. 106-139 

Reason for Proposed Action: To remove portions of 
rules which have been preempted by federal rules. 

Comment Procedures: Written comments may be 
submitted no later than August 2, 1996, to David S. 
McLeod, Secretary, Board of Agriculture , PO Box 27647, 
Raleigh, NC 27611. 

CHAPTER 9 - FOOD AND DRUG PROTECTION 
DIVISION 

SUBCHAPTER 9C - CURRENT GOOD 
MANUFACTURING PRACTICES FOR SPECD7IC 
FOOD INDUSTRDZS 

SECTION .0700 - BOTTLED WATER 

.0701 SCOPE 

(a) The source approval requirements of this Section 
apply to bottled water sources located within the state. 
Bottled water from sources located outside the state must 
comply with the source approval requirements of Title 2 1 , 
Code of Federal Regulations, Part 129, which is adopted 
by reference in 2 NCAC 9B .0016(0(15). 

(b) Th e lab e ling r e quir e m e nts of this S e otion apply to 
bottled water offered for salo in the stato. 

History Note: Authority G. S. 106-139; 

Ejf. April 1, 1992; 

Temporary Amendment Ejf. May 13, 1996. 

.0702 DEFINITIONS 

For the purposes of this Section: 
(1) "Approved source" when used in reference to a 
plant's product or operations water, means a 
source of water and the water therefrom, 
whether it be from a spring, well, municipal 
water supply, or any other source that has been 



approved by the Department of Agriculture's 
designated representative, the Department of 
Environment, Health, and Natural Resources, 
Environmental Health Division, Public Water 
Supply Section in accordance with this Section; 

(2) "Spring" means a natural orifice in the earth's 
surface through which water freely flows with- 
out the aid of mechanical means; 

(3) "Well" means a hole that is cored, bored, 
drilled, jetted, dug or otherwise constructed so 
as to tap an aquifer through which water is 
derived by mechanical means. If th e water 
rises to tho surface on its own without aid of 
mechanical means duo to hydrostatic pressure, 
th e w e ll would b e an art e sian w e ll. 

History Note: Authority G.S. 106-139; 

Eff. April 1, 1992; 

Temporary Amendment Eff. May 13, 1996. 

.0704 LABELING 

Bottled water which uses tho word "apring" or "well" in 
its lab e ling to d e oorib e th e produot, oth e r than in a trado 
nam e or oompany nam e , shall b e d ee m e d to bo m ie- 
brandod unless tho source of such water conforms to -the 
definitions of those terms in Rulo .0702 of this Section. 

History Note: Authority G.S. 106-139; 

Eff. April 1, 1992; 

Temporary Repeal Eff. May 13, 1996. 



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APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its 
meeting of May 16. 1996 pursuant to G.S. 150B-21. 17(a)(1) and reported to the Joint Legislative Administrative 
Procedure Oversight Committee pursuant to G.S. 150B-21. 16. The full text of rules are published below when the 
rules have been approved by RRC in a form different from that originally noticed in the Register or when no notice 
was required to be published in the Register. The rules published in full text are identified by an * in the listing of 
approved rules. Statutory reference: G.S. 150B-21.17. 

These rules will become effective on the 31st legislative day of the 1997 Regular Session of the General Assembly or a 
later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the 
bill receives an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 150B- 
21.3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



11 


NCAC 


12 


.0551 * 


11 


NCAC 


16 


.0703 


16 


NCAC 


01A 


.0001 * 


16 


NCAC 


01A 


.0003 * 


17 


NCAC 


05C 


.2101 * 



10:22 NCR 2831 

10:22 NCR 2832 

Not Required, G.S. 150B-21. 5(a)(2) 

Not Required, G.S. 150B-21. 5(b)(1) 

10:24 NCR 3059 



TITLE 11 - DEPARTMENT OF INSURANCE 

CHAPTER 12 - LIFE AND HEALTH DIVISION 

SECTION .0500 - ACCIDENT AND HEALTH: 
GENERAL NATURE 

.0551 CANCER INSURANCE REQUIREMENTS 

Cancer policy requirements. Cancer policies approved in 
this State muot shall comply with the following it e ms : 

(1) The policy mu9t shall have a pre-existing condi- 
tions sticker that complies with 11 NCAC 12 
.0543 and reads as follows: NO RECOVERY 
FOR PRE-EXISTING DIAGNOSED CANCER - 
READ CAREFULLY No benefits will be pro- 
vided during the first two yoars 12 months of the 
policy for cancer diagnosed prior to before the 
30th day following after the effective date shown 
in the policy schedule. 

(2) In the definition of cancer, clinical diagnosis of 
cancer muot shall be accepted as evidence that 
cancer exists in an insured when a pathological 
diagnosis cannot be made, provided such the 
medical evidence substantially documents the 
diagnosis of cancer and the insured received 
definitive treatment for cancer. Wh e n e v e r If the 
requisite pathological clinical diagnosis can only 
be made postmortem, liability should shall be 
assumed retroactively beginning with the date of 
the terminal admission to the hospital for ae not 
less than 45 days prior to before the date of 
death. 



(3) A cancer policy cannot shall not have a waiting 
period any longer than 30 days from after the 
effective date. 

(4) Benefits must shall be provided for unrelated 
cancers diagnosed after the effective date of the 
policy. 

(5) Under the benefits provisions of the policy, 
provided the contract offers these benefits, ew the 
minimum standards are as follows: 

(a) Benefits for blood and plasma plasma, th e 
benefits should shall cover actual charges 
incurred, including fees for administering 
the blood. 

(b) The word term "In-patient" should shall 
precede the words "drugs" and "medicines" 
drugs and modioinoe if the policy is an 
in-hospital indemnity contract or does not 
provide out-patient benefits. 

(c) Ambulance benefits should shall include 
transportation from one medical facility to 
another. 

(d) First diagnosed or first occurrence cancer 
benefits shall be no less favorable than 
other generally offered cancer benefits and 
shall be offered in addition to core benefits. 

(6) Cancer coverage may include other diseases or 
conditions; provided, however, it must shall be 
properly labeled - CANCER AND SPECIFIED 
DISEASE(S). 

(7) Cancer and dread disease policies are defined as 
"Medical Expense" policies in regard to for the 
purposes of loss ratio requirements as set forth in 



283 



NORTH CAROLINA REGISTER 



June 3, 1996 



11:5 



APPROVED RULES 



the NAIC guidelines. 

History Note: Authority G.S. 58-2-40; 58-51-1; 58-51-95; 

Eff. July 1, 1986; 

Amended Eff. April L 1997; April 1, 1989. 



TITLE 16 - DEPARTMENT OF PUBLIC 
EDUCATION 



tion, Article IX, Sec. 5; 
Eff. July 1, 1986; 
Repealed Eff. April 1. 1997. 



TITLE 17 - DEPARTMENT OF REVENUE 

CHAPTER 5 - CORPORATE INCOME AND 
FRANCHISE TAX DrVISION 



CHAPTER 1 - DEPARTMENTAL RULES 
SUBCHAPTER 1A - ORGANIZATIONAL RULES 

.0001 DEFINITIONS 

As used in this Title: 

(1) "Basic Education Program" (BEP) means that 
comprehensive program developed by the SBE 
and implemented by each LEA in accordance with 
the provisions of G.S. 115C-81. 

(2) "Certificate" means that document issued by the 
Department to professional public school employ- 
ees that indicates that they have met the minimum 
criteria for serving in a professional position. 

(3) "Certificate of attendance" means that document 
issued by LEAs to students pursuant to 16 NCAC 
6D .0103(a). 

(4) "Department" means the Department of Public 
Education. Instruction. 

(5) "Graduation certificate" means that document 
issued by LEAs to students pursuant to 16 NCAC 
6D .0103(c). 

(6) "Local Education Agency" (LEA) means local 
board of education. As used in 16 NCAC 6H 
.0005 - .0010, LEA includes the Departments of 
Human Resources and Correction. 

(7) "State Board of Education" (SBE) means the head 
of the Department of Public Education. Instruc- 
tion. 

(8) "Superintendent" means the Superintendent of 
Public Instruction. 

History Note: Authority N.C. Constitution, Article IX, 

Section 5; 

Eff. February 1, 1976; 

Amended Eff April 1^ 1997; January 1, 1993; August 1, 

1991; July 1, 1986. 

.0003 ORGANIZATION OF DEPARTMENT 

The? department is organized according to its statement of 
organization whioh it adopts in aooordano e — with G.S. 
150B 10. Th e publio may obtain a oopy of th e stat e m e nt of 
organization by writing the Department at 1 14 We s t Edenton 
Street, Raleigh, North Carolina 27603 1712 or by contact 
ing the Offioo of Administrativ e Hearings. 

History Note: Authority G.S. 115C-12(3); N.C. Constitu- 



SUBCHAPTER 5C - CORPORATE INCOME TAX 

SECTION .2100 - DISSOLUTIONS AND 
WITHDRAWALS 

.2101 DISSOLUTIONS/FILING REQUIREMENT 

The "Business Corporation Act" provides for an adminis - 
trative and a voluntary dissolution of corporations. 

(4} Voluntary Dissolution — A corporation is dissolv e d 

imm e diat e ly upon th e e ff e ctiv e dat e of filing th e 
article s of dissolution with the Secretary of State. 
Although a tax clearance is no longer a part of the 
S e cr e tary of Stat e 's voluntary dissolution proo e so, 
this in no way r e li e v e s the corporation of — its 
liability to file all tax reports and returns duo and 
pay all taxes duo the Department of Revenue. 
Th e D e partm e nt will continu e to notify a oorpora 
tion of any unfulfill e d tax requirements. 
After the end of the end of the year in which 
dissolution occurs, a dissolved corporation is not 
subj e ot to th e annual franohise tax unless the 
corporation engages in busin e s s activiti e s not 
appropriate to winding up and liquidating it s 
business and affairs. 

(2) Administrativ e Dissolution Th e S e or e tary of 

State may administratively disoolv e corporations 
for variou s non compliance reasons, one of the 
most common reasons being the failure of a 
corporation to fil e its annual r e port to the Sooro 
tary of Stat e . — Ono e this diooolution ooours, th e 
corporation may apply to the Secretary of State 
for reinstatement within two years after the date 
of diooolution. — This application muot contain a 
o e rtifioate — from th e — D e partm e nt — of Rev e nue 
stating that all taxe s owed by the corporation have 
boon paid. — The request for the "certificate of 
good standing" mu o t b e in writing and oigned by 
on offioer of the corporation. — Th e r e qu e st shall 
bo directed to the Office Examination Division of 
the Department of Revenue. 
(a) A corporation that has been voluntarily dissolved 
pursuant to G.S. 55-14-01 shall file all tax reports and 
returns due and pay all taxes due the Department of Reve- 
nue. The Department shall notify such corporation of any 
unfulfilled tax requirements. After the end of the year in 
which the dissolution occurs, a dissolved corporation shall 
not be subject to the annual franchise tax unless the corpora- 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



284 



APPROVED RULES 



tion engages in business activities not a ppropriate to winding 
up and liquidating its business affairs. 

(b) A corporation that has been administratively dissolved 
pursuant to G.S. 55-14-21 shall file all reports and returns 
due and pay all taxes due the Department. 

History Note: Authority G.S. 55-14-01; 55-14-20; 105- 

130. 16; 105-262; 

Eff. February 1, 1976; 

Amended Eff. April 1^ 1997; January 1, 1995; January 1, 

1994; November 1, 1991; April 1, 1991. 



285 NORTH CAROLINA REGISTER June 3, 1996 11:5 



RULES REVIEW COMMISSION 



A his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. June 20. qt_ 10:00 
a.rn. Anyone wishing to submit written comment on any rule before the Commission should submit those comments to the 
RRC staff, the agency, and the individual Commissioners by Monday. June 17. at 5:00 p.m. Specific instructions and 
addresses may be obtained from the Rules Review Commission at 919-733-2721. Any one wishing to address the 
Commission should notify the RRC staff and the agency at least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Vemice B. Howard 

Teresa L. Smallwood 

Charles H. Henry 

Philip O. Redwine - Vice Chairman 



Appointed by House 

Jennie J. Hayman - Chairman 
Bill Graham 
Paul Powell 
Ed Shelton 



RULES REVIEW COMMISSION MEETING DATES 



June 20, 1996 
July 18, 1996 
August 15, 1996 
September 19, 1996 



October 17, 1996 
November 21, 1996 
December 19, 1996 



MEETING DATE: JUNE 20, 1996 



FOLLOW UP MATTERS FROM PREVIOUS MEETING: 

Medical Board - 21 NCAC 32H .0702 



RULES SUBMITTED: 



LOG OF FILINGS 

APRIL 20, 1996 THROUGH MAY 20, 1996 



AGENCY/DIVISION 



RULE NAME 



RULE 



ACTION 



DHR/DIVISION OF MEDICAL ASSISTANCE 








Notice of Estate Recovery 


10 NCAC 50D .0101 


Adopt 




Permanently Institutionalized 


10 NCAC 50D .0102 


Adopt 




Ages 55 and Over 


10 NCAC 50D .0103 


Adopt 




Reconsideration Review 


10 NCAC 50D .0201 


Adopt 




Permanently Institutionalized 


10 NCAC 50D .0301 


Adopt 




Ages 55 and Over 


10 NCAC 50D .0302 


Adopt 




Filing Claim 


10 NCAC 50D .0401 


Adopt 




Collection of Claims 


10 NCAC 50D .0402 


Adopt 




Recovery Not Cost Effective 


10 NCAC 50D .0501 


Adopt 




Undue Hardship 


10 NCAC 50D .0502 


Adopt 




Determination of Undue Hardship 


10 NCAC 50D .0503 


Adopt 




DEHNR/ENVmONMENTAL MANAGEMENT COMMISSION 








Neuse River Basin 


15A NCAC 2B .0315 


Amend 




Definitions 


15A NCAC 2D .0101 


Amend 




Compliance with Emission Standards 


15A NCAC 2D .0501 


Amend 




Sulfur Dioxide Emissions 


15A NCAC 2D .0516 


Amend 




Miscellaneous Volatile Emissions 


15A NCAC 2D .0518 


Amend 




11:5 NORTH CAROLINA REGISTER 


June 3, 1996 




286 



RULES REVIEW COMMISSION 



Control of Nitrogen Dioxide 


15A NCAC 2D 


.0519 


Amend 


Control and Prohibition 


15A NCAC 2D 


.0520 


Repeal 


Control of Visible Emissions 


15A NCAC 2D 


.0521 


Amend 


New Source 


15A NCAC 2D 


.0524 


Amend 


National Emission Standards 


15A NCAC 2D 


.0525 


Repeal 


Sources 


15A NCAC 2D 


.0531 


Amend 


Excess Emissions 


15A NCAC 2D 


.0535 


Amend 


Control of Mercury Emissions 


15A NCAC 2D 


.0537 


Amend 


Odor Control 


15A NCAC 2D 


.0539 


Adopt 


Purpose and Scope 


15A NCAC 2D 


.0601 


Amend 


Sources Covered 


15A NCAC 2D 


.0604 


Amend 


Program Schedule 


15A NCAC 2D 


.0608 


Amend 


Airport Facilities 


15A NCAC 2D 


.0804 


Amend 


Parking Facilities 


15A NCAC 2D 


.0805 


Amend 


Definitions 


15A NCAC 2D 


.0901 


Amend 


Applicability 


15A NCAC 2D 


.0902 


Amend 


Automobile 


15A NCAC 2D 


.0917 


Amend 


Can Coating 


15A NCAC 2D 


.0918 


Amend 


Coil Coating 


15A NCAC 2D 


.0919 


Amend 


Paper Coating 


15A NCAC 2D 


.0920 


Amend 


Fabric and Vinyl Coating 


15A NCAC 2D 


.0921 


Amend 


Metal Furniture Coating 


15A NCAC 2D 


.0922 


Amend 


Surface Coating 


15A NCAC 2D 


.0923 


Amend 


Magnet Wire Coating 


15A NCAC 2D 


.0924 


Amend 


Bulk Gasoline Plants 


15A NCAC 2D 


.0926 


Amend 


Bulk Gasoline Terminals 


15A NCAC 2D 


.0927 


Amend 


Gasoline Service Stations 


15A NCAC 2D 


.0928 


Amend 


Petroleum Refinery Sources 


15A NCAC 2D 


.0929 


Repeal 


Coating 


15A NCAC 2D 


.0934 


Amend 


Factory Surface Coating 


15A NCAC 2D 


.0935 


Amend 


Manufacture of Rubber Tires 


15A NCAC 2D 


.0937 


Amend 


Miscellaneous Volatile Emissions 


15A NCAC 2D 


.0951 


Amend 


Vapor Return Piping 


15A NCAC 2D 


.0953 


Amend 


Stage II Vapor Recovery 


15A NCAC 2D 


.0954 


Amend 


Case-by-Case Maximum 


15A NCAC 2D 


.1109 


Amend 


National Emission Standards 


15A NCAC 2D 


.1110 


Adopt 


Maximum Control Technology 


15A NCAC 2D 


.1111 


Adopt 


Definitions 


15A NCAC 2D 


.1202 


Amend 


Reporting 


15A NCAC 2D 


.1204 


Amend 


Emission Standards 


15A NCAC 2D 


.1205 


Amend 


Operational Standards 


15A NCAC 2D 


.1206 


Amend 


Purpose 


15A NCAC 2D 


.1901 


Adopt 


Definitions 


15A NCAC 2D 


.1902 


Adopt 


Permissible Open Burning 


15A NCAC 2D 


.1903 


Adopt 


Air Curtain Burners 


15A NCAC 2D 


.1904 


Adopt 


Regional Office Locations 


15A NCAC 2D 


.1905 


Adopt 


Delegation 


15A NCAC 2D 


.1906 


Adopt 


Permit Requirements 


15A NCAC 2H 


.0610 


Amend 


Definitions 


15A NCAC 2Q 


.0103 


Amend 


Compliance Schedule 


15A NCAC 2Q 


.0109 


Amend 


Applicability 


15A NCAC 2Q 


.0201 


Amend 


Definitions 


15A NCAC 2Q 


.0202 


Amend 


Permit & Application Fees 


15A NCAC 2Q 


.0203 


Amend 


Inflation Adjustment 


15A NCAC 2Q 


.0204 


Amend 


Annua] Emissions Reporting 


15A NCAC 2Q 


.0207 


Amend 


Facilities 


15A NCAC 2Q 


.0302 


Amend 


Permitting of Facilities 


15A NCAC 2Q 


.0311 


Amend 



287 



NORTH CAROLINA REGISTER 



June 3, 1996 



11:5 



RULES REVIEW COMMISSION 



Purpose of Section 


15A NCAC 2Q .0501 


Amend 


Applicability 


15A NCAC 2Q .0502 


Amend 


Definitions 


15A NCAC 2Q .0503 


Amend 


Application 


15A NCAC 2Q .0507 


Amend 


Permit Content 


15 A NCAC 2Q .0508 


Amend 


Case-by-Case MACT Procedures 


15A NCAC 2Q .0526 


Adopt 



DEHNR/COMMISSION FOR HEALTH SERVICES 

Definitions 



15A NCAC 18A .2701 



Amend 



NC BOARD OF PHARMACY 



Office of the Board 


21 NCAC 46 .1204 


Amend 


Examination 


21 NCAC 46 .1505 


Amend 


Pharmacy Permits 


21 NCAC 46 .1601 


Amend 


License by Reciprocity 


21 NCAC 46 .1602 


Amend 


Out-of-State Pharmacies 


21 NCAC 46 .1607 


Amend 


Excessive Dispensing 


21 NCAC 46 .1811 


Adopt 


Certificate of Experience 


21 NCAC 46 .1910 


Repeal 


Committee on Nominations 


21 NCAC 46 .2104 


Amend 


Drugs and Devices 


21 NCAC 46 .2403 


Amend 


Responsibilities 


21 NCAC 46 .2502 


Amend 


Patient Counseling 


21 NCAC 46 .2504 


Amend 


NC PSYCHOLOGY BOARD 






Fees 


21 NCAC 54 .1605 


Amend 


Issuance of License 


21 NCAC 54 .1705 


Amend 


Certificate of Registration 


21 NCAC 54 .2202 


Amend 


Renewal of Certificate 


21 NCAC 54 .2203 


Amend 


NC REAL ESTATE COMMISSION 






Agency Agreements 


21 NCAC 58A .0104 


Amend 


Handling and Accounting 


21 NCAC 58A .0107 


Amend 


Reporting Criminal Convictions 


21 NCAC 58A .0113 


Adopt 


Filing and Fees 


21 NCAC 58 A .0302 


Amend 


Time and Place 


21 NCAC 58A .0401 


Amend 


Subject Matter 


21 NCAC 58A .0402 


Amend 


Business Entities 


21 NCAC 58 A .0502 


Amend 


License Renewal 


21 NCAC 58 A .0503 


Amend 


Active and Inactive 


21 NCAC 58A .0504 


Amend 


Reinstatement 


21 NCAC 58 A .0505 


Amend 


Salesman to be Supervised 


21 NCAC 58 A .0506 


Amend 


Cancellation 


21 NCAC 58A .0510 


Adopt 


Subpoenas 


21 NCAC 58A .0610 


Amend 


Continuing Education 


21 NCAC 58A .1702 


Amend 


Scope 


21 NCAC 58C .0104 


Amend 


Course Scheduling 


21 NCAC 58C .0305 


Amend 


Textbooks 


21 NCAC 58C .0306 


Amend 


Real Estate Instructors 


21 NCAC 58C .0307 


Amend 


Instructional Delivery Methods 


21 NCAC 58C .0311 


Adopt 


Exception 


21 NCAC 58C .0312 


Adopt 


Application 


21 NCAC 58E .0203 


Amend 


Renewal of Approval 


21 NCAC 58E .0204 


Amend 


Elective Course 


21 NCAC 58E .0302 


Amend 


Criteria 


21 NCAC 58E .0304 


Amend 


Instructional Delivery Methods 


21 NCAC 58E .0310 


Adopt 


Course Completion Reporting 


21 NCAC 58E .0406 


Amend 


Per Student Fee 


21 NCAC 58E .0407 


Amend 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



288 



RULES REVIEW COMMISSION 



Renewal of Course 

Minimum Class Size 

Student Participation Standards 



21 NCAC 58E .0411 Amend 

21 NCAC 58E .0503 Amend 

21 NCAC 58E .0511 Amend 



RULES REVIEW OBJECTIONS 



ACUPUNCTURE LICENSING BOARD 



21 NCAC 1 .0709 - Procedure of Revocation of Licensure 
Agency Revised Rule 

AGRICULTURE 

Pesticide Board 

2 NCAC 9L . 1806 - Crop Advisor Exemption 
Agency Revised Rule 

AUCTIONEERS COMMISSION 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



04/18/96 
04/18/96 



03/21/96 
03/21/96 



21 NCAC 4B .0202 - Filing and Fees 

Agency Revised Rule 
21 NCAC 4B .0403 - Apprentice Auctioneer License 

Agency Revised Rule 
21 NCAC 4B .0602 - Advertising 

Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Resources Commission 

15 A NCAC 7H .0208 - Use Standards 

Agency Revised Rule 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15 A NCAC 7H .2303 - Permit Fee 

Agency Revised Rule 
15 A NCAC 7H .2305 - Specific Conditions 

Agency Revised Rule 

Environmental Management 

15A NCAC 2B .0216 - Fresh Surface Water Quality Standards for Ws-iv Waters 

Agency Revised Rule 
15A NCAC 2H .0219 - Minimum Design Requirements 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 

Commission for Health Services 

15 A NCAC 13B .1401 - Requirement for Permit 

Agency Revised Rule 
15A NCAC 13B . 1402 - General Provisions for SW Compost Facilities 

Agency Revised Rule 
15A NCAC 13B .1404 - Siting/Design Requirements for SW Compost Facilities 

Agency Revised Rule 
15 A NCAC 13B .1405 - Application Requirements for SW Compost Facilities 

Agency Revised Rule 
15A NCAC 13B .1406 - Operational Requirements for Solid Waste Compost Facilities 

Agency Revised Rule 



RRC Objection 


03/21/96 


Obj. Removed 


03/21/96 


RRC Objection 


03/21/96 


Obj. Removed 


03/21/96 


RRC Objection 


03/21/96 


Obj. Removed 


03/21/96 



289 



NORTH CAROLINA REGISTER 



RRC Objection 


03/21/96 


Obj. Cont'd 


03/21/96 


Obj. Cont'd 


04/18/96 


Eff 


05/01/96 


RRC Objection 


05/16/96 


Obj. Removed 


05/16/96 


RRC Objection 


05/16/96 


Obj. Removed 


05/16/96 


RRC Objection 


05/16/96 


Obj. Removed 


05/16/96 


RRC Objection 


04/18/96 


Obj. Cont'd 


05/16/96 


Eff. 


06/01/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


ities RRC Objection 


04/18/96 


Obj. Cont'd 


04/18/96 


June 3, 1996 


11:5 



RULES REVIEW COMMISSION 



Rule Returned to Agency Obj. Cont'd 05/16/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 06/01/96 

15A NCAC 13B .1407 - Classification/Distribution of Solid Waste Compost Products RRC Objection 04/18/96 

Agency Revised Rule Obj. Cont'd 04/18/96 

Rule Returned to Agency Obj. Cont'd 05/16/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 06/01/96 

15A NCAC 13B . 1408 - Methods for Testing and Reporting Requirements RRC Objection 04/18/96 

Agency Revised Rule Obj. Cont'd 04/18/96 

Rule Returned to Agency Obj. Cont'd 05/16/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 06/01/96 

15A NCAC 13B .1409 - Approval of Alternative Procedures and Requirements RRC Objection 04/18/96 

Rule Returned to Agency Obj. Cont'd 05/16/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 06/01/96 

15 A NCAC 18A .1723 - Springs RRC Objection 04/18/96 

Agency Revised Rule Obj. Removed 04/18/96 

15A NCAC 18A . 1727 - Continuous Disinfection 

Rule Withdrawn by Agency 04/18/96 

15A NCAC 18A . 1805 - Inspection Forms 

Rule Withdrawn by Agency 04/18/96 



Wildlife Resources Commission 

15A NCAC WD .0003 - Hunting on Game Lands 

Agency Revised Rule 
15A NCAC 10K .0001 - Course Requirements 

Agency Revised Rule 
15A NCAC 10K .0003 - Instructor Certification Requirements 

Rule Withdrawn by Agency 

FEE-BASED PRACTICING PASTORAL COUNSELORS 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



05/16/96 
05/16/96 
03/21/96 
03/21/96 

03/21/96 



21 NCAC 45 .0201 - Information Required 

No Response from Agency 

Agency Revised Rule 
21 NCAC 45 .0301 - Types 

No Response from Agency 

Agency Revised Rule 
21 NCAC 45 .0402 - Second Notice 

No Response from Agency 

Agency Revised Rule 
21 NCAC 45 .0501 - Continuing Education Requirements 

No Response from Agency 

Agency Revised Rule 
21 NCAC 45 .0601 - Equivalency 

No Response from Agency 

Agency Revised Rule 
21 NCAC 45 .0701 - Issuance of Temporary Certificate 

No Response from Agency 

Agency Revised Rule 
21 NCAC 45 .0802 - Types of Supervision 

Agency Revised Rule 

No Response from Agency 

Rule Returned to Agency 
21 NCAC 45 .0901 - Requirements for Individual Psychotherapy Experience 

Agency Revised Rule 

No Response from Agency 

Rule Returned to Agency 
21 NCAC 45 .1001 - Code of Ethics 



RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Removed 


04/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Removed 


04/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Removed 


04/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Removed 


04/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Removed 


04/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Removed 


04/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Cont'd 


04/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Cont'd 


04/18/96 


RRC Objection 


02/15/96 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



290 



RULES REVIEW COMMISSION 



No Response from Agency 
Rule Returned to Agency 

HEARING AID DEALERS AND FITTERS BOARD 

21 NCAC 22L .0001 - Committee on Investigations 
RRC Reviewed Rule 
Agency Revised Rule 

HUMAN RESOURCES 



Obj. Cont'd 


03/21/96 


Obj. Cont'd 


04/18/96 


Extended Review 


01/18/96 


RRC Objection 


02/15/96 


Obj. Removed 


03/21/96 



Medical Care Commission 

10 NCAC 3C .5401 - Definitions RRC Objection 01/18/96 

Agency Responded Obj. Cont'd 02/15/96 

Rule Returned to Agency Obj. Cont'd 03/21/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 05/01/96 

10 NCAC 3C .5402 - Physician Req for Inpatient Rehabilitation Facilities or Units RRC Objection 01/18/96 

Agency Responded Obj. Cont'd 02/15/96 

Rule Returned to Agency Obj. Cont'd 03/21/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 05/01/96 

10 NCAC 3C .5407 - Comprehensive Rehabilitation Personnel Administration RRC Objection 01/18/96 

Agency Responded Obj. Cont'd 02/15/96 

Rule Returned to Agency Obj. Cont'd 03/21/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 05/01/96 

10 NCAC 3C .5408 - Comprehensive Inpatient Rehabilitation Program Staffing Req. RRC Objection 01/18/96 

Agency Responded Obj. Cont'd 02/15/96 

Rule Returned to Agency Obj. Cont'd 03/21/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 05/01/96 

10 NCAC 3C .5409 - Staff Training for Inpatient Rehabilitation Facilities or Unit RRC Objection 01/18/96 

Agency Responded Obj. Cont'd 02/15/96 

Rule Returned to Agency Obj. Cont'd 03/21/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 05/01/96 

10 NCAC 3C .5412 - Additional Requirements for Traumatic Brain Injury Patients RRC Objection 01/18/96 

Agency Responded Obj. Cont 'd 02/15/96 

Rule Returned to Agency Obj. Cont'd 03/21/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 05/01/96 

10 NCAC 3C .5413 - Additional Requirements for Spinal Cord Injury Patients RRC Objection 01/18/96 

Agency Responded Obj. Cont'd 02/15/96 

Rule Returned to Agency Obj. Cont 'd 03/21/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 05/01/96 



Commission for Mental Health, Developmental Disabilities and Substance Abuse Services 

10 NCAC 15 A .0100 and .0200 

Rules Withdrawn by Agency 
10 NCAC 15A .0126 - Resolution of Differences of Opinion 

Agency Revised Rule 



Social Services Commission 

10 NCAC 39D .0304 - Alternative Work Experience 

Agency Responded 

RRC Reconsidered this Rule 
10 NCAC 46D .0106 - Allocation 

Rule Withdrawn by Agency 
10 NCAC 46D .0107 - Reimbursement 

Rule Withdrawn by Agency 
10 NCAC 46D .0202 - Review Criteria for Start-Up Funds 





03/21/96 


RRC Objection 


05/16/96 


Obj. Removed 


05/16/96 


Extended Review 


01/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Removed 


04/18/96 


RRC Objection 


01/18/96 


Obj. Cont'd 


03/21/96 


RRC Objection 


01/18/96 


Obj. Cont'd 


03/21/96 


RRC Objection 


01/18/96 



291 



NORTH CAROLINA REGISTER 



June 3, 1996 



11:5 



RULES REVIEW COMMISSION 



Rule Withdrawn by Agency 
INSURANCE 

Agent Services Division 

11 NCAC 6 A .0904 - Regulatory Matters 
Agency Revised Rule 

Consumer Services Division 

11 NCAC 4 .0502 - Assumed Expenses and Current Scale 

Agency Revised Rule 
11 NCAC 4 .0505 - Standards for Basic Illustrations 

Agency Revised Rule 
11 NCAC 4 .0506 - Standards for Supplemental Illustrations 

Agency Revised Rule 

11 NCAC 4 .0509 - Annual Certifications 

Agency Revised Rule 

JUSTICE 

Private Protective Services 

12 NCAC 7D .0808 - Concealed Weapons 

No Response from Agency 
Agency Revised Rule 

MARITAL AND FAMILY THERAPY CERTD7ICATION BOARD 

21 NCAC 31 .0102 - Address 

No Response from Agency 

Agency Repealed Rule 
21 NCAC 31 .0104 -Fees 

No Response from Agency 

Agency Repealed Rule 
21 NCAC 31 .0304 - Subsequent Reexaminations 

No Response from Agency 

Rule Withdrawn by Agency 
21 NCAC 31 .0502 - Approved Supervision 

No Response from Agency 

Agency Revised Rule 

MEDICAL BOARD 

21 NCAC 32H .0101 - Authority: Intent and Goals 

Agency Repealed Rule 
21 NCAC 32H .0303 - Sponsor Hospital 

Agency Revised Rule 
21 NCAC 32H .0402 - Emergency Medical Technician-Paramedic Performance 

Agency Revised Rule 
21 NCAC 32H .0403 - Emergency Medical Technician-Intermediate Performance 

Agency Revised Rule 
21 NCAC 32H .0406 - Emergency Medical Tech.: Advanced Intermediate Performance 

Agency Revised Rule 
21 NCAC 32H .0702 - Requests 

No Response from Agency 

NURSING 



Obj. Cont'd 



03/21/96 



RRC 


' Objection 


03/21/96 


Obj. 


Removed 


03/21/96 


RRC 


' Objection 


03/21/96 


Obj. 


Removed 


03/21/96 


RRC 


' Objection 


03/21/96 


Obj. 


Removed 


03/21/96 


RRC 


' Objection 


03/21/96 


Obj. 


Removed 


03/21/96 


RRC 


' Objection 


03/21/96 


Obj. 


Removed 


03/21/96 



RRC Objection 


03/21/96 


Obj. Cont'd 


04/18/96 


Obj. Removed 


05/16/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Removed 


04/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Removed 


04/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Cont'd 


04/18/96 


RRC Objection 


02/15/96 


Obj. Cont'd 


03/21/96 


Obj. Removed 


04/18/96 



RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Cont'd 


05/16/96 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



292 



RULES REVIEW COMMISSION 



21 NCAC 36 .0228 - Clinical Nurse Specialist Practice RRC Objection 

Agency Revised Rule Obj. Removed 

NURSING HOME ADMINISTRATORS 

21 NCAC 37C .0101 - Petitions for Adoption of Rules RRC Objection 

Agency Revised Rule Obj. Removed 

21 NCAC 37C .0102 - Procedure for Adoption of Rules RRC Objection 

Agency Revised Rule Obj. Removed 

21 NCAC 37D .0412 - Initial On-ihe-Job Training RRC Objection 

Agency Revised Rule Obj. Removed 

21 NCAC 37F .0101 - Prerequisites for Temporary Licensure RRC Objection 

Agency Revised Rule Obj. Removed 

21 NCAC 371 .0101 - Investigation: Discipline: and Contested Case Proceedings RRC Objection 

Agency Revised Rule Obj. Removed 

PUBLIC EDUCATION 

State Board of Education 

16 NCAC 1A .0003 - Organization of Department RRC Objection 

Agency Repealed Rule Obj. Removed 

16 NCAC 6D .0106 - Limited English Proficiency Programs RRC Objection 

No Response from Agency Obj. Cont 'd 

Agency Revised Rule Obj. Removed 

16 NCAC 6H .0007 - Special Education Assessment and Placement Procedures RRC Objection 

Agency Revised Rule Obj. Removed 

SECRETARY OF STATE 

Boxing Commission 

18 NCAC 9 .0101 - Purpose, Applicability and Scope of the Rules RRC Objection 

Agency Revised Rule Obj. Removed 

18 NCAC 9 .0103 - North Carolina State Boxing Commission RRC Objection 

Agency Revised Rule Obj. Removed 

18 NCAC 9 .0104 - Conduct of Boxing Matches RRC Objection 

Agency Rewrote Rule as 18 NCAC 9 .0104 through .0109 Obj. Removed 

18 NCAC 9 .0106 - Licensing Requirements and Duties of Licensees RRC Objection 

Agency Re\'ised Rule and Recodified to 18 NCAC 9 .0111 Obj. Removed 

18 NCAC 9 .0107 - Contracts and Financial Arrangements RRC Objection 

Agency Re\'ised Rule and Recodified to 18 NCAC 9 .0112 Obj. Removed 

18 NCAC 9 .0108 - Kickboxing RRC Objection 

Agency Rewrote Rule as 18 NCAC 9 .0113 through .0116 Obj. Removed 

18 NCAC 9 .0117 - Toughman Match RRC Objection 

Agency Revised Rule Obj. Removed 

SUBSTANCE ABUSE PROFESSIONALS 

21 NCAC 68 .0101 - Definitions RRC Objection 

Agency Revised Rule Obj. Removed 

21 NCAC 68 .0206 - Process for Prevention Consultant Certification RRC Objection 

Agency Revised Rule Obj. Removed 

21 NCAC 68 .0403 - Employer Inservice Event RRC Objection 

Agency Revised Rule Obj. Removed 

VETERINARY MEDICAL BOARD 

21 NCAC 66 



03/21/96 
03/21/96 



03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 



05/16/96 
05/16/96 
03/21/96 
04/18/96 
05/16/96 
05/16/96 
05/16/96 



03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
03/21/96 
04/18/96 
04/18/96 



04/18/96 
04/18/96 
04/18/96 
04/18/96 
04/18/96 
04/18/96 



293 



NORTH CAROLINA REGISTER 



June 3, 1996 



11:5 



RULES REVIEW COMMISSION 



Rules Withdrawn by Agency 
21 NCAC 66 .0203 - License Required to Practice; Faculty Cert.; Zoo Veterinary Cert. 

Agency Revised Rule 
21 NCAC 66 .0206 - Minimum Standards for Continuing Education 

Agency Revised Rule 
21 NCAC 66 .0207 - Minimum Facility and Practice Standards 

Agency Revised Rule 
21 NCAC 66 .0301 - Application and Examination 

Agency Revised Rule 
21 NCAC 66 .0303 - SPCL/REG. /VET. /TECH. /INTERNS/PRECEP;REN/TECH. /REG 

Agency Revised Rule 
21 NCAC 66 .0606 - Who Shall Hear Contested Cases 

Agency Revised Rule 
21 NCAC 66 .0703 - Subpoenas 

Agency Revised Rule 





03/21/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 


RRC Objection 


04/18/96 


Obj. Removed 


04/18/96 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



294 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. Copies of 
the decisions listed in the index and not published are available upon request for a minimal charge by contacting the 
Office of Administrative Hearings, (919) 733-2698. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 
JULIAN MANN, m 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TTVE LA W JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Meg Scott Phipps 



Robert Roosevelt Reilly Jr. 
Dolores Nesnow Smith 
Thomas R. West 



AGENCY 



CASE 
NUMBER 



AIJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Fuad Saif Murehed v. Ale. Bev. Ctl. Comm. & Durham Mem. Bapt. Ch. 

Alcoholic Beverage Control Commission v. Tremik, Inc. 

Alcoholic Beverage Control Commission v. Maria Virginia Tramontano 

Alcoholic Beverage Control Commission v. Huffman Oil Co., Inc. 

Pinakin P. Talate v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Entrepreneur, Inc. 

Alcoholic Beverage Control Commission v. Henry Franklin Gurganus 

Andrew Parker v. Alcoholic Beverage Control Commission 

Barraq Sabri Alquza v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Partnership T/A T & L Groceries 

Alcoholic Beverage Control Commission v. Cashion's Food Mart, Inc. 

Bro Bee, Inc. v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Donald Ray Doak 

Alcoholic Beverage Control Commission v. Janice LorTaine Jeter 

Alcoholic Beverage Control Commission v. Kubbard, Inc. 

George Wright and Alice Ramsuer v. Alcoholic Beverage Control Comm. 96 

Alcoholic Beverage Control Commission v. Robert Montgomery McKr.ight96 

Alcoholic Beverage Control Commission v. Jacqueline Robin Anthony 

COMMISSION FOR AUCTIONEERS 



95 ABC 0922 


Chess 


95 ABC 0925 


Morriosn 


95 ABC 


1200 


West 


95 ABC 


1251 


West 


95 ABC 


1329 


West 


95 ABC 


1363 


Reilly 


95 ABC 


1389 


West 


95 ABC 


1402 


Phipps 


95 ABC 


1424 


Phipps 


95 ABC 


1443 


West 


95 ABC 


1444 


Gray 


95 ABC 


1480 


West 


95 ABC 


1488 


West 


96 ABC 0013 


Reilly 


96 ABC 0017 


Reilly 


96 ABC 0058 


Becton 


96 ABC 0135 


Phipps 


96 ABC 0184 


Phipps 



04/24/96 
03/25/96 
04/23/96 
04/03/96 
04/10/96 
05/02/96 
04/01/96 
03/27/96 
04/03/96 
03/26/96 
03/13/96 
04/15/96 
03/29/96 
04/26/96 
05/20/96 
04/16/96 
05/09/96 
05/09/96 



11:03 NCR 166 



John W. Foster v. Auctioneer Licensing Board 
CRIME CONTROL AND PUBLIC SAFETY 



96 CTA 0201 



Phipps 



05/06/96 



Helen B. Hunter-Reid v. Crime Victims Compensation Commission 
Kenneth Saunders v. Victims Compensation Commission 
Ruby H. Ford v. Crime Victims Compensation Commission 
Manuel Cervantes v. Victims Compensation Fund 



95 CPS 1336 


Nesnow Smith 


03^29/96 


95 CPS 1445 


Chess 


03/26/96 


96 CPS 0110 


Reilly 


04/18/96 


96 CPS 0118 


Chess 


03/19/96 



11:02 NCR 93 



295 



NORTH CAROLINA REGISTER 



June 3, 1996 



11:5 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ENVIRONMENT, HEALTH. AND NATURAL RESOURCES 

Gribble & Assoc. & Four Seasons Car Wash v. EHNR 

David Martin Shclton v. Rockingham County Dept/Public Health, EHNR 95 EHR 0941 

Kinslon Urological Associates, P.A. v. N.C. Cancer Program 

Kinston Urological Associates, P.A. v. N.C. Cancer Program 

Elsie &. Tony Cecchini v. Environment, Health, & Natural Resources 

Gerald Mac Clamrock v. Environment, Health, & Natural Resources 

Coastal Resources 

Martin W. Synger v. Division of Coastal Management 

J. E. Smith Construction Co. v. Division of Coastal Management 

Theodore D. Barns v. Town of Long Beach, NC & Coastal Mgmt, EHNR 96 EHR 0277 

Environmental Health 

Paradise Ridge Home Owners by Anne Norburn v. EHNR, Env. Health 96 EHR 0162 

Environmental Management 

Herman E. Smith v. Division of Environmental Management 95 EHR 0962 

Conover Lumber Co., Inc. v. EHNR, Division of Environmental Mgmt. 95 EHR 1081 
Jack West d/b/a Jack West Tree Service v. Environmental Mgmt. Comm. 95 EHR 1421 



95 EHR 0576 


Gray 


04/25/96 






95 EHR 0941 


West 


05/01/96 






95 EHR 1198* 2 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 11 99** 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1240 


Rally 


04/22/96 






96 EHR 0168 


Phipps 


05/06/96 







95 EHR 1006 


Chess 


05/13/96 


96 EHR 0074 


Nesnow Smith 


02/23/96 


96 EHR 0277 


West 


05/09/96 



Land Resources 

K&G Properties, Inc. v. EHNR, Division of Land Resources 
Marine Fisheries 



95 EHR 1078 



Robert I. Swinson, Sr. v. EHNR, Health & Nat. Res., Marine Fisheries 95 EHR 0320 

Grayden L. Fulcher and Michael Styron, Sr. v. Div. of Marine Fisheries 96 EHR 0003 

W1C Program 

Lazelle Marks v. EHNR, Division of Maternal and Child Health 95 EHR 0870 

Bob's Quick Mart, Bobby D. Braswell v. Env., Health, & Natural Res. 96 EHR 0091 

Larry E. Mis v. USDA-Food/Cons Svc, Cory Menees-WIC Prog., EHNR 96 EHR 0164 



EQUAL EMPLOYMENT OPPORTUNITIES 

Carl D. DaviB v. Department of Correction 
HUMAN RESOURCES 



91 EEO 1101 



Cassandra M. Deshazo v. Christine E. Carroll, Chf Chid Abuse/Neg. Sec. 95 DHR 1410 
Medicus Robinson v. Department of Human Resources 96 DHR 0167 

Division of Child Development 



Molly Fallin v. Department of Human Resources 
Molly Fallin v. Department of Human Resources 
Mary T. Hill v. DHR, Division of Child Development 
Iola Roberson v. DHR, Division of Child Development 



Division of Facility Services 

Eloise Brown v. Dept. of Human Resources, Division of Facility Services 95 DHR 1002 

Group Care Licensure Section 
Alex L. McCall v. DHR, Div/Facility Svcs, Group Care Licensure Sec. 95 DHR 1456 

Medical Facilities Licensure Section 
Stacey Yvette Franklin v. Facility Services, Medical Facilities Lie. Sec. 96 DHR 0358 



Phipps 



Nesnow Smith 



Chess 
Reilly 



Nesnow Smith 



Phipps 
Nesnow Smith 



Phipps 



Nesnow Smith 



Morrison 



05/06/96 



est 04/30/96 


illy 04/12/96 


orrison 04/08/96 



03/25/96 



03/29/96 
03/06/96 



West 


03/27/96 


Nesnow Smith 


04/02/96 


Phipps 


03/19/96 



05/06/96 



03/28/96 
04/12/96 



94 DHR 0872* 5 


Gray 


05/15/96 


95 DHR 1013* 3 


Gray 


05/15/96 


95 DHR 1192 


PhippB 


03/27/96 


95 DHR 1244 


Gray 


05/16/96 



03/07/96 



03/26/96 



05/16/96 



11:03 NCR 168 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



296 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Division of Social Services 

Rozena Chambliss v. Department of Human Resources 95 DHR 1044 

Addie & Major Short v. Department of Human Resources 95 DHR 1063 

Mr. and Mrs. Jessie Stevenson v. DHR, Division of Social Services 95 DHR 1072 
William G. Fisher v. DHR, Div. of Social Services, Prog Integrity Branch 95 DHR 1234 

Verna F. Nunn v. Department of Human Resources 95 DHR 1330 

Nancy Hooker, Helen Tyndall v. Department of Human Resources 96 DHR 0155 



Child Support Enforcement Section 

Donald E. Rideout Jr. v. Department of Human Resources 

Christopher F. Roakes v. Department of Human Resources 

Richard R. Fox, Sr. v. Department of Human Resources 

Joselito D. Pilar v. Department of Human Resources 

David Lee Grady v. Department of Human Resources 

Patrick Orlando Crump v. Department of Human Resources 

Peter Robert Kovolsky v. Department of Human Resources 

Tony Lee Zapata v. Department of Human Resources 

Lawrence Dow Dean v. Department of Human Resources 

Carl E. Coffey v. Department of Human Resources 

Keith Dewayne Senters v. Department of Human Resources 

Mickey Turner v. Department of Human Resources 

James Joseph Gallagher v. Department of Human Resources 

James Thomas McRae v. Department of Human Resources 

Vincent E. Koehler v. Department of Human Resources 

David J. Moseley v. Department of Human Resources 

Derrick L. Conyers v. Department of Human Resources 

Charles Edward Smith v. Department of Human Resources 

Kevin Vereen v. Department of Human Resources 

James Curtis Witwer v. Department of Human Resources 

Thornell Bowden v. Department of Human Resources 

Henry S. Sada v. Department of Human Resources 

Charles F. Moore v. Department of Human Resources 

Daniel Leslie Baker v. Department of Human Resources 

John L. Pike v. Department of Human Resources 

Wm. R. Evans v. Department of Human Resources 

Rory J. Curry v. Department of Human Resources 

Lorin A. Brown v. Department of Human Resources 

Marcus Anthony Butts v. Department of Human Resources 

Cynthia Pinder v. Department of Human Resources 

Rhonnie J. Williams v. Department of Human Resources 

Ramon Domenech v. Department of Human Resources 

Dennis L. McNeill v. Department of Human Resources 

Tony A. Rogers v. Department of Human Resources 

Rick E. Atkins v. Department of Human Resources 

Timothy A. Ratley (Jeanes) v. Department of Human Resources 

Richard E. Reader v. Department of Human Resources 

Wilbur Dewayne Bault v. Department of Human Resources 

James C. Smith v. Department of Human Resources 

Ronald D. Johnson v. Department of Human Resources 

Johnny Leary v. Department of Human Resources 

John W. Scott v. Department of Human Resources 

Calvin S. Austin v. Department of Human Resources 

Derek Henslee v. Department of Human Resources 

Norman Waycaster v. Department of Human Resources 

Lorenzo Wilson v. Department of Human Resources 

Thornell Bowden v. Department of Human Resources 

Carl R. Ritter v. Department of Human Resources 

Melinda S. Tunner v. Department of Human Resources, Child Sup. Enf. 

Jeanne G. Bishop v. Department of Human Resources, Child Sup. Enf. 

Rebecca Beaver v. Department of Human Resources, Child Sup. Enf. 

Laura Heidorf v. Department of Human Resources, Child Support Enf. 

INSURANCE 



Nesnow Smith 


03/12/96 


Morrison 


03/19/96 


Phipps 


03/15/96 


Morrison 


03/19/96 


Gray 


04/11/96 


Gray 


04/26/96 



95 CSE 0952 


RciUy 


04/18/96 


95 CSE 


1131 


Becton 


05/03/96 


95 CSE 


1169 


Becton 


03/19/96 


95 CSE 


1180 


Chess 


03/01/96 


95 CSE 


1218 


MorriBon 


03/26/96 


95 CSE 


1221 


Nesnow Smith 


03/05/96 


95 CSE 


1230 


Becton 


03/11/96 


95 CSE 


1266 


Gray 


05/02/96 


95 CSE 


1267 


Morrison 


03/29/96 


95 CSE 


1270 


Nesnow Smith 


03/15/96 


95 CSE 


1273 


Phipps 


04/01/96 


95 CSE 


1278 


Nesnow Smith 


03/14/96 


95 CSE 


1280 


Chess 


03/19/96 


95 CSE 


1296 


Chess 


03/15/96 


95 CSE 


1301 


Phipps 


05/09/96 


95 CSE 


1304 


Chess 


03/29/96 


95 CSE 1308 


Reilly 


03/13/96 


95 CSE 


1309 


West 


03/07/96 


95 CSE 


1315 


Phipps 


05/06/96 


95 CSE 


1331 


Becton 


03/26/96 


95 CSE 


1345 


Morrison 


03/07/96 


95 CSE 


1367 


Nesnow Smith 


03/21/96 


95 CSE 


1369 


Chess 


03/27/96 


95 CSE 


1373 


Morrison 


03/12/96 


95 CSE 


1376 


Nesnow Smith 


03/21/96 


95 CSE 


1377 


Becton 


03/11/96 


95 CSE 


1380 


Mann 


03/15/96 


95 CSE 


1382 


Reilly 


04/18/96 


95 CSE 


1405 


Nesnow Smith 


03/27/96 


95 CSE 1406 


Becton 


03/11/96 


95 CSE 


1407 


Chess 


05/06/96 


95 CSE 


1408 


Phipps 


03/11/96 


95 CSE 


1435 


Becton 


03/13/96 


95 CSE 


1436 


Chess 


05/16/96 


95 CSE 


1437 


Phipps 


04/01/96 


95 CSE 


1465 


Morrison 


03/26/96 


95 CSE 


1469 


Nesnow Smith 


04/29/96 


95 CSE 


1475 


West 


03/13/96 


96 CSE 0034 


Gray 


05/10/96 


96 CSE 0084 


Nesnow Smith 


03/27/96 


96 CSE 0085 


Becton 


05/03/96 


96 CSE 0130 


Mann 


03/15/96 


96 CSE 0140 


Phipps 


05/17/96 


96 CSE 0188 


Reilly 


05/17/96 


96 CSE 0245 


Becton 


05/16/96 


96 CSE 0257 


Phipps 


05/06/96 


96 CSE 0370 


Morrison 


05/17/96 


96 CSE 0380 


West 


05/08/96 


95 DCS 0921 


Morrison 


05/09/96 


95 DCS 0958 


West 


04/04/96 


95 DCS 


1114 


Reilly 


04/26/96 


96 DCS 0065 


Reilly 


03/22/96 



Carol M. Hall v. Teachers & Stale Employees Comp. Major Medical Plan 95 INS 1141 Phipps 04/01/96 

Arthur Wayne Dempsey v. Department of Insurance 95 INS 1255 Nesnow Smith 04/22/96 



297 



NORTH CAROLINA REGISTER 



June 3, 1996 



11:5 



CONTESTED CASE DECISIONS 



AGENCY 



Deborah B. Beavere v. Teachers & St. Emp. Comp. Major Med. Plan 
Nadia A. Hakim v. Department of Insurance 

JUSTICE 

Education and Training Standards Division 

Freddie Levern Thompson v. Criml. Justice Ed. & Training Stds. Comm. 
Shane Douglas Crawford v. Sheriffs' Ed. & Training Stds. Comm. 
Valerie Maxine Brewington v. Criml. Justice Ed. & Training Stds. Comm. 
Patricia Josephine Bonanno v. Sheriffs' Ed. & Training Stds. Comm. 
Rick M. Evoy v. Criminal Justice Ed. & Training Stds. Comm. 
Gregory Lee Daughtridge v. Sheriffs' Ed. & Training Stds. Comm. 
Carlton Gerald v. Criminal Justice Ed. & Training Stds. Comm. 
Ken Montie Oxendine v. Criminal Justice Ed. & Training Stds. Comm. 
David Kent Knight v. Sheriffs' Ed. & Training Stds. Comm. 

Private Protective Services Board 

Timothy A. Hawkins v. Private Protective Services Board 
William F. Combs v. Private Protective Services Board 

PUBLIC INSTRUCTION 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


95 INS 1411 


Nesnow Smith 


05/10/96 


11:05 NCR 308 


95 INS 1422 


Nesnow Smith 


03/26/96 





95 DOJ 0731 


Chess 


02/29/96 


95 DOJ 0943 


Reilly 


05/17/96 


95 DOJ 1 129 


Nesnow Smith 


04/12/96 


95 DOJ 1152 


Chess 


03/25/96 


95 DOJ 1235 


Chess 


03/25/96 


96 DOJ 0027 


Reilly 


03/19/96 


96 DOJ 0068 


Gray 


03/26/96 


96 DOJ 0071 


West 


03/28/96 


96 DOJ 0115 


West 


03/28/96 



95 DOJ 1419 

96 DOJ 0022 



Lavern K. Suggs v. NC Board of Education 95 EDC 0383 

J.T.S. & T.S., Parents of E.M.S. v. Chapel Hill-Carrboro City Schl. Sys. 95 EDC 1194 
Candyce Ewanda Ncwsome v. Hertford County Board of Education 96 EDC 0344 

STATE PERSONNEL 

Department of Administration 

Carlton Gerald v. State Capitol Police, Department of Administration 96 OSP 0116 

Administrative Office of the Court 

Ethel R. Tyson v. NC Judicial Dept., Administrative Office of the Court 96 OSP 0080 

Appalachian State University 

Janice S. Walton v. Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0062 
Janice S. Carroll v. Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0063 

Caldwell County 

Blake C. Pace v. Caldwell County 96 OSP 0047 

NC Central University 

Francina Y. Tate v. Chancellor Julius L. Chambers, NC Central Univ. 95 OSP 1432 

Central North Carolina School for the Deaf 

Felicia S. Milton v. Central North Carolina School for the Deaf 95 OSP 1241 

Department of Correction 

Haydee Craver v. Department of Correction, Pender Correctional Inst. 95 OSP 1046 
Gregory Allen Jones v. Department of Correction, Supt. Bonnie Boyette 95 OSP 1290 
Calvia L. Hill v. Department of Correction, McCain Correctional Hospital 95 OSP 1460 
Brenda Propst v. Foothills Correctional Institution 96 OSP 0199 

Haydee C. Craver v. Department of Correction, Christopher Phillips 96 OSP 0348 

East Carolina University 

Bela E. Karvaly, Ph.D. v. ECU Bd. of Trustees, Ch. Richard R. Eakin 96 OSP 0150 

Employment Security Commission 



West 
West 



Gray 



Nesnow Smith 



West 
West 



Morrison 



Nesnow Smith 



Chess 



04/12/96 
03/22/96 



Nesnow Smith 


03/13/96 


11:01 NCR 


50 


Mann 


04/12/96 






Chess 


05/15/96 







04/25/96 



03/15/96 



03/13/96 
03/07/96 



04/01/96 



04/22/96 



05/17/96 



Gray 


03/12/96 


Phippa 


05/14/96 


Gray 


05/17/96 


Morrison 


04/09/96 


Phipps 


05/15/96 



Chess 



05/08/96 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



298 



CONTESTED CASE DECISIONS 



AGENCY 

Gene S. Baker v. Gov. James B. Hunt, Jr., Ann Q. Duncan, Chairman, 93 OSP 0707 

Employment Security Commission 
Patricia Gary v. Employment Security Commission 

Department of Environment, Health, and Natural Resources 

Roberta Ann "Robin" Hood v. Environment, Health, & Natural Resources 95 OSP 0035 

Fayetteville State University 

William C. Neal v. Fayetteville State University 95 OSP 0392 

Department of Human Resources 

Ophelia Webb v. Edard R. Inman, Dir. Alamance Cty DSS, Alamance 96 OSP 0112 
Cty DSS, Alamance County, and DHR 

CasK'ell Center 

Ramona C. Jenkins v. Department of Human Resources, Caswell Center 89 OSP 0411 
Ramona C. Jenkins v. Department of Human Resources, Caswell Center 91 OSP 0522 
FrankJin D. Sutton v. Department of Human Resources, Caswell Center 94 OSP 0766 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


3 OSP 0707 


Bee ton 


05/16/96 


11:05 NCR 300 


5 OSP 0793 


Chess 


05/14/96 





Wake County Department of Social Services 
Phylis Gilbert v. Wake County Department of Social Services 
Department of Labor 

Kevin P. Kolbe, Sr. v. Department of Labor 
New Hanover County Board of Health 
Tabandeh Zand v. New Hanover County Board of Health 
North Carolina State University 

Vernell Mitchell v. North Carolina Cooperative Extension 
Department of Transportation 



Jerel H. Bonner v. School of Nursing UNC at Chapel Hill 

Bela E. Karvaly, Ph.D. v. UNC Bd. of Gov., Pres. CD. Spangler, Jr. 

UNIVERSITY OF NORTH CAROLINA 

Sylvia Jeffries v. University of NC Hospitals at Chapel Hill 



95 OSP 1238 



95 OSP 0968 



95 OSP 1035 



96 OSP 0132 



Reilly 



Nesnow Smith 



Gray 



Phipps 



Morrison 



Nesnow Smith 



Gray 



Pearlie M. Simuel-Johnson v. Department of Transportation 

Dorothy J. GrayB v. Div. of Motor Vehicles, Dept. of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Melvin Duncan v. Department of Transportation 

Greg Brown v. Department of Transportation 

Jesse Wayne Castle v. State Highway Maint , Guess Rd., Durham, NC 96 OSP 0087 

Archie Brooks v. W. F. Rosser, Department of Transportation 

Tri-County Mental Health Complex 

Deborah Heil v. Tri-County Mental Health Complex 
University of North Carolina 



95 OSP 1100 



96 OSP 0026 
96 OSP 0151 



96 UNC 0067 



Nesnow Smith 



Gray 
Chess 



04/09/96 



04/22/96 



03/13/96 



Bccton 


03/26/96 






Becton 


03/26/96 


11:02 NCR 


89 


Nesnow Smith 


03/21/96 







05/17/96 



03/14/96 



03/01/96 



05/10/96 



94 OSP 0589- ' 


Gray 


03/01/96 


94 OSP 1044 


Reilly 


04/12/96 


95 OSP 0837*' 


Gray 


03/01/96 


95 OSP 1462 


Morrison 


03/08/96 


96 OSP 0048 


Reilly 


05/02/96 


96 OSP 0087 


Gray 


04/15/96 


96 OSP 0239 


Nesnow Smith 


05/17/96 



Gray 



03/22/96 



03/12/96 
05/08/96 



04/16/96 



11:01 NCR 58 



11:03 NCR 173 



11:01 NCR 61 



*- Consolidated cases. 



299 



NORTH CAROLINA REGISTER 



June 3, 1996 



11:5 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 OSP 0707 



GENE S. BAKER, 
Petitioner, 



v. 



GOVERNOR JAMES B. HUNT, JR. AND ANN Q. 
DUNCAN, CHAmMAN, EMPLOYMENT SECURITY 
COMMISSION, 

Respondent. 



RECOMMENDED DECISION 



This matter was heard before the undersigned administrative law judge in Raleigh, North Carolina on November 
14 and 15, 1995. The Petitioner initiated this contested case in July 1993 in order to appeal his dismissal following the 
Respondents' decision to designate the Internal Audit Manager I position at the Employment Security Commission as policy 
making exempt. 



APPEARANCES 



For Petitioner: Pro se. 



For Respondent: T. S. Whitaker, Chief Counsel, and V. Henry Gransee, Jr., Deputy Chief Counsel, North Carolina 
Employment Security Commission, Raleigh, North Carolina. 

ISSUES 

1 . Whether the position of Internal Audit Manager I at the Employment Security Commission was properly 
designated as policy making exempt. 

2. Whether the Petitioner was properly dismissed from his position as Internal Audit Manager I at the 
Employment Security Commission. 

STATUTES AND RULES INVOLVED 

N.C. Gen. Stat. §126-5(b) 
N.C. Gen. Stat. §126-5(c) 
N.C. Gen. Stat. §§126-5(d)(l) & (6) 
N.C. Gen. Stat. §126-5(e) 
N.C. Gen. Stat. §126-5(h) 

EXHIBITS 

The following exhibits offered by the Petitioner were received in evidence: 

P2. ESC Administrative Bulletin No. 7 (91). 

P3. Job Description for Internal Auditing Manager I position. 

P5. WPPR's for Gene Baker covering the period July 1, 1989-June 30, 1993. 

P6. Letter from Daniel L. Lowery to Ann Q. Duncan dated November 12, 1991. 

P7. Letter from Joseph G. Elliott to William D. Flowers dated May 6, 1993. 

P8. "Under the Dome,"77i<? News & Observer, October 2, 1993 . 

P9. Letter from H.W. Campbell dated October 26, 1993. 

P10. September 15, 1993 Memorandum from Mike Gaddis re: Gene Stewart Baker. 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



300 



CONTESTED CASE DECISIONS 



Ruling on the Admissibility of Petitioner's Exhibit 4 

The Petitioner's Exhibit 4 (P4), Government Auditing Standards (1988), was conditionally received in evidence 
subject to the Petitioner providing copies of it to the undersigned and to counsel for the Respondents. The Petitioner did 
not provide a copy of his exhibit to the undersigned until after the Respondents objected to its admission in its Proposed 
Recommended Decision filed on April 4, 1996. The Petitioner has apparently never furnished the Respondents a copy of 
P4. The Respondents acknowledge that they have a 1993 copy of the Government Auditing Standards, but P4 is a 1988 
version. 

The Petitioner originally proffered a photocopy of a portion of P4. The entire document was only proffered when 
the Respondents objected to the Petitioner only offering a portion of the document. The Petitioner explained that he felt that 
the portion of P4 he had copied was all that was relevant to the issues in this case contested case and that he might have some 
difficulty procuring other copies of the entire book. 

Since the Petitioner is appearing pro se, he has not had the benefit counsel to advise him about how to prepare all 
the documents he proposed to offer as evidence at the hearing. Although the Respondents are entitled to copies of all of the 
Petitioner's exhibits, the Respondents have not demonstrated any undue prejudice resulting from not having a copy of P4 
furnished to them by the Petitioner. Recognizing the Petitioner's pro se status and the Respondents' failure to demonstrate 
undue prejudice, P4 is hereby received in evidence. 

The following exhibits offered by the Respondent were received in evidence: 

Rl. Request for Position Classification effective August 1, 1982. 

R2. Job Description, Director of Systems Audit and Risk Management. 

R3. Letter to Graham Cooke, Personnel Director from Doug Deaton, Section Chief, Position Management Division, 

Dated September 3, 1982. 
R4. Career Advancement Opportunities, August 1, 1983. 

R5. Request for Position Classification effective October 1, 1983. 

R6. Letter to Harold G. Wiggins, Internal Auditing Manager I, from Glenn R. Jernigan, 

Chairman, dated November 14, 1983. 
R7. Memo to Directors, etc. from Glenn R. Jernigan, Chairman, dated January 3, 1984, Re: Systems Audit and Risk 

Management Unit. 
R8. Memo to John Higgins, Governor's Office, from David T. Flaherty, Chairman, dated May 7, 1985, Re: Exempt 

positions established for ESC. 
R9. Memo to Directors, etc. from Joe Hensgen, EDP Systems Auditor, dated April 25, 1986, Re: Access to IMS Files. 

RIO. Memo to All Commission Employees from Betsy Y. Justus, Chairman, dated September 7, 1988, Re: Internal 

Security and Internal Audit. 
Rll. Memo to Tom Whitaker, Clarence Jones, etc. from Ann Q. Duncan, Chairman, dated August 3, 1992, Re: 

Organization Changes. 
R12. Memo to Jim Bennett, Director of Personnel Appointments, Governor's Office, from Ann Q. Duncan, Chairman 

dated April 23, 1993, Re: Policy-making Exempt Position Possibilities (As Discussed). 
R13. Organizational Chart. 
R14. Letter to Governor James B. Hunt, Jr. from S. Davis Phillips, Secretary, NC Department of Commerce, dated April 

26, 1993, Re: List of exempt positions. 
R15. Letter to Ron Penny, State Personnel Director, from Governor James B. Hunt, Jr. dated April 29, 1993. 
R16. Letter to Governor James B. Hunt, Jr. from Ron Penny dated April 29, 1993. 
R17. Letter to Gene Baker, Internal Auditing Manager I, from Ann Q. Duncan, dated May 3, 1993, Re: Your position 

designated as policy-making exempt. 
R18. Letter to Gene Baker from Ann Q. Duncan dated June 11, 1993 Re: Employment terminated. 
R20. Internal Security Handbook 
R21. Letter to Gene Baker from Mike Gaddis, Director, Employment Practices and Priorities Division, OSP, Re: Priority 

Re-employment. 

Based upon the official documents in the file, sworn testimony of the witnesses, and other competent and admissible 
evidence, the undersigned makes the following: 



301 NORTH CAROLINA REGISTER June 3, 1996 11:5 



CONTESTED CASE DECISIONS 



FINDINGS OF FACT 

1 . The Petitioner, Gene S. Baker, is a registered Republican, a citizen of Wayne County, North Carolina, and a former 
employee of the Employment Security Commission ("ESC"). 

2. The Petitioner began his eight years as a State government employee as Governor James G. Martin's Advisor to 
Public Education. 

3. The Petitioner was first employed with the ESC on February 24, 1986 as an analyst in the Testing and Research 
Unit of Employment Services. In April 1986, he was promoted to Assistant to the Chief Deputy Commissioner. 
In November 1986, that position was eliminated and the Petitioner was transferred to the position of Director of 
the Systems Audit & Risk Management Unit (Internal Auditing Manager I), pay grade 76. He held that position 
until his dismissal on June 11, 1993. 

4. Respondent Ann Q. Duncan is a registered Republican. As of the date of the hearing, Ms. Duncan was the 
Chairman of the North Carolina Employment Security Commission and as such, pursuant to N. C. Gen. Stat. §96- 
4(a), was the Chief Executive Officer vested with all the authority of the ESC when the full Commission was not 
in session. Ms. Duncan was originally appointed to this office on August 1, 1990, by Governor James G. Martin, 
a Republican, and was subsequently reappointed on October 1, 1993 by Respondent Governor James B. Hunt, Jr., 
a Democrat. 

5. In April of 1993, Chairman Duncan was asked to submit a list of ESC employees whom she felt should be 
designated policy-making exempt. By statute, policy-making exempt is defined as "a position delegated with the 
authority to impose the final decision as to a settled course of action to be followed within a department, agency, 
or division." N.C. Gen. Stat. §126-5(b). 

6. Chairman Duncan delegated to Joseph G. Elliot, her Chief Deputy, the task of preparing a list of ESC positions that 
the Governor's Office could consider policy-making exempt under N.C. Gen. Stat. §126-5(d)(l). Mr. Elliot 
prepared a list for Chairman Duncan's approval. 

7. Neither Chairman Duncan nor anyone else told Mr. Elliot which ESC positions he should list as policy-making 
exempt positions. Mr. Elliot made that determination based on his many years of experience with ESC and his 
knowledge of positions that had been designated exempt in the past. 

8. Chairman Duncan submitted the list as prepared by Mr. Elliot without any changes or comments. She never told 
or asked Mr. Elliot to include any position or incumbent on the list. 

9. Mr. Elliot prepared a two page list consisting of seventeen positions. The first page consisted of "Recommended" 
positions for designation as exempt policy-making positions. The second page was labeled "Supplemental" positions 
for consideration for designation as exempt policy-making positions. He did the list in two pages because neither 
he nor Chairman Duncan knew how many positions would be designated as exempt. 

10. On April 23, 1993, Chairman Duncan proposed that the Internal Auditing Manager I position be designated as a 
policy-making exempt position. 

11. During the month of April 1993, Chairman Duncan met at least once at the Governor's Office to discuss the 
designation of positions as exempt. She took an organizational chart with positions, but no names, on it to that 
meeting. Representatives of the Governor's Office the Attorney General's Office, and the Office of State Personnel 
examined all of the positions on the list. No names were mentioned. Only the positions were discussed. The 
incumbents filling the positions were not discussed or considered. Chairman Duncan was told that Governor Hunt 
wanted the designations to be in compliance with the law and the total number of positions designated as exempt 
throughout State government was to be less than number designated by the previous administration. 

12. Chairman Duncan also discussed the list on at least one occasion with Herbert W. Campbell, then the Personnel 
Director of the Department of Commerce, because he was responsible for incorporating ESC's list into Commerce's 
list. ESC is administratively housed in Commerce as an independent commission. 



11:5 NORTH CAROLINA REGISTER June 3, 1996 302 



CONTESTED CASE DECISIONS 



13. Mr. Campbell included all of the positions on the first page of the list prepared by Mr. Elliot and the two deputy 
director positions that are the first two positions on the supplemental list. In all, he recommended that twelve ESC 
positions be designated as policy-making exempt. 

14. Governor Hunt designated as exempt the ESC positions recommended by Commerce without any changes. 

15. On April 29, 1993, pursuant to N.C. Gen. Stat. §126-5(d)(l). Governor Hunt designated the ESC's Internal 
Auditing Manager I position as policy-making exempt. 

16. On May 3, 1993, Chairman Duncan wrote the Petitioner informing him that effective May 18, 1993, pursuant to 
the provisions of N.C. Gen. Stat.§§126-5(c) and 126-5(d)(l), Governor James B. Hunt, Jr. was designating the 
Internal Auditing Manager I position as policy-making exempt. 

17. Chairman Duncan's letter to the Petitioner did not mention any procedure for challenging the designation of the 
position as policy-making exempt. The letter did, however, inform the Petitioner that "[t]he provisions of Chapter 
126 will no longer apply to your position except as to the policies and rules established by the State Personnel 
Commission pursuant to G.S. 126-4(1), 126-4(2), 126-4(3), 126-4(4), 126-4(5), 126-4(6), and 126-7 and Articles 
6 and 7." 

18. The Petitioner acknowledged receipt of Chairman Duncan's notice of his forthcoming exempt status on May 10, 
1993. 

19. The Petitioner was dismissed from State employment on June 11, 1993 based upon his exempt status. Chairman 
Duncan made the decision to dismiss the Petitioner based on a recommendation from ESC's then Administrative 
Services Director, George G. Morris. Mr. Morris came to ESC from the State Auditor's Office where he had 
experience investigating fraud and abuse claims. 

20. After arriving at ESC in June 1993, Mr. Morris reviewed the Internal Audit operations and decided that he was not 
satisfied with the condition of that unit. Based upon his review, Mr. Morris recommended that the Petitioner be 
dismissed and replaced with someone with a background and experience in fraud, waste, and abuse investigations. 

21. Other than Mr. Morris' recommendation to Chairman Duncan, no one asked, recommended or told either Chairman 
Duncan or Mr. Morris to replace the Petitioner. 

22. The Petitioner filed a Petition for a Contested Case Hearing with the Office of Administrative Hearings on July 6, 
1993 challenging his dismissal as being discriminatory and retaliatory and also challenging the designation of his 
position as policy-making exempt. 

23. On September 15, 1993, the Office of State Personnel sent the Petitioner a letter informing him of his right to 
priority reemployment consideration. 

24. This contested case was stayed on November 10, 1993, pending an investigation by the Office of State Personnel 
regarding whether the position the Petitioner held was properly designated policy-making exempt. On September 
15, 1994, the Office of State Personnel sent the Petitioner a letter notifying him that it was going to conduct an 
investigation into the designation of his position as policy-making exempt. There is nothing in the record to show 
that the Office of State Personnel ever completed its investigation. 

25. The Legislature enacted legislation, effective June 1, 1995, that removed the provision in N.C. Gen. Stat. § 126- 
5(c)(1) that provided for investigation of the designation of a position as policy-making exempt by the Office of State 
Personnel. 

26. The stay was lifted on August 17, 1995. 

27. As the Director of Systems Audit and Risk Management, the Petitioner's "primary responsibility . . . [was] the 
direction of the Systems Audit and Risk Management Program." (R2) The position reported to the Chairman's 
office. 

28. The position as Director of ESC's System Audit and Risk Management or Internal Audit Unit was first established 
303 NORTH CAROLINA REGISTER June 3, 1996 11:5 



CONTESTED CASE DECISIONS 



as a new position in September 1982 with the position classification of Internal Auditing Manager I. The Internal 
Auditor classifications are generally utilized for financial and compliance auditing of agency fiscal operations. The 
ESC position originally included financial and compliance auditing of agency fiscal operations, but there was a 
"much greater emphasis on the analysis of security systems than is typically found in the position of Internal 
Auditor." (R3) The Petitioner, like his predecessors, did not perform financial audits, but rather performance 
reviews of ESC activities, with particular emphasis on improper activities by employees. 

29. The first incumbent placed in the position was designated policy-making exempt with responsibilities for: 
administration of all operations of the created Systems Audit and Risk Management Unit, including supervisor of 
a staff of two professional positions and one clerical position. The Unit's responsibilities were to include financial 
audits of ESC monies; operational audits of ESC operations, including compliance with legal and regulatory 
requirements and policy guidelines; assurance of physical security of ESC facilities; risk analyses of ESC operations 
and facilities, including safeguard and cost benefits analysis; investigation of alleged or suspected fraud or misuse 
of public funds or facilities by ESC employees; and the establishment and maintenance of control systems. An area 
of special importance was insuring control of data processing functions with its opportunity for electronic abuse. 
(R4) 

30. The first incumbent signed a letter dated November 14, 1983, acknowledging that he served at the pleasure of the 
Chairman of ESC, then Glenn R. Jernigan, a Democrat and that the position played "a significant part [in] the 
formation and implementation of policies and programs for this administration." (R6) 

31. Chairman Jemigan's successor, David T. Flaherty, a Republican, also believed the position should be exempt, 
although during Republican Governor Martin's administration the position was designated non-exempt and retained 
that designation during the remainder of Governor Martin's administration. Until then, the position historically had 
been designated policy-making exempt. 

32. As the Director of ESC's System Audit and Risk Management or Internal Audit Unit, the Petitioner had authority 
to access all ESC data and records, including personnel files. He conducted background checks on new employees 
and employees promoted to management or sensitive positions. 

33. Use of Federal or other government auditing standards such as those described in the Government Auditing 
Standards (P4) were never required for the investigations or audits the Petitioner performed. Such standards were 
never referenced or found in the reports, findings, documents, or investigations supervised by the Petitioner while 
he was in the position. 

34. The financial audits of ESC grants and funds made by federal and state financial auditors were required to reference 
governmental auditing standards. The federal Department of Labor had such audits performed by federal auditors 
or by the State Auditor under the "single audit" concept. These audits were a requirement of federal and some state 
grants or appropriations to ESC. 

35. The Petitioner is not a certified public accountant. The Petitioner has a B.S. degree in Business Administration, 
a masters in Vocational Education and School Administration, and a "six-year degree in ... School 
Administration, Finance, and Management." (T. vol.2, p. 175). He spent eighteen years in public education. 

36. The Petitioner did not perform financial audits. According to his testimony, "an internal auditor is not a public 
auditor, it is not a state auditor - it is an auditor that does reviews of policies, procedures, and program operations 
and performances . . . ." (T. vol.2, p. 172). 

37. The Petitioner's responsibilities for financial audits involved review of the completed financial audits to ascertain 
what the findings and recommendations were so that he could advise and recommend appropriate policy action by 
ESC. 

38. The Petitioner's major responsibilities included monitoring and investigation of ESC policy violations and 
recommending policy changes to the Chairman. To perform these duties, he had the authority to investigate 
whatever he believed needed investigating to fulfill his responsibilities. He had authority to make recommendations 
to the Chairman's office for improvements in security, economy, efficiency, whether procedural or operational. 
The Petitioner had total access to ESC information, whether confidential or not, so that he could identify weaknesses 



11:5 NORTH CAROLINA REGISTER June 3, 1996 304 



CONTESTED CASE DECISIONS 



and risks and make recommendations for improvement. 

39. The Petitioner acted as spokesperson on Internal Audit matters to other state agencies. He spoke for ESC with the 

U.S. Department of Labor Regional Office and had the authority, according to Chairman Duncan, to speak for ESC 
with law enforcement agencies. He had total access to all ESC resources (property, records, and personnel). He 
had a duty to conduct investigations and make recommendation. He reviewed and investigated sensitive personnel 
hires. He produced a policy handbook on internal audit matters. He had the authority to investigate all divisions 
of ESC. 



Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1. North Carolina General Statutes section 126-5(d)(l) allows the Governor to designate certain positions as exempt 
policy-making. The rationale for creating exempt positions is "to allow the governor to employ top level state 
employees on an at-will basis, and to reposition these employees as he felt necessary in order to further the agenda 
of the administration." Stott y^ Haworth , 916 F.2d 134, 142 (4th Cir. 1990). 

2. Pursuant to the provisions of N.C. Gen. Stat. §§126-5(c) and (h), an employee occupying a position that is 
designated exempt policy-making can challenge such a designation by filing a Petition for a Contested Case Hearing. 

3. Procedurally, the Petitioner did not challenge the designation of his position as policy-making exempt until he was 
dismissed from that position. 

4. The Petitioner contends that he was not given notice of his appeal rights when he received notice on May 3, 1993, 
that his position would become exempt effective May 18, 1993. The remedy for such a procedural violation would 
be to provide the Petitioner with a hearing which in fact has occurred in this instance. Thus if the Petitioner was 
entitled to notice of his appeal rights, any damage caused by the failure to furnish him notice of his appeal rights 
has been cured by these proceedings. 

5. A threshold inquiry regarding whether a position is properly designated policy-making exempt is whether the 
position involves "government decisionmaking on issues where there is room for political disagreement on goals 
or their implementation?" Stott , supra at 142 (quoting Jimenz Fuentes v. Torres Gaztambide . 807 F.2d 236, 241-42 
(1st Cir. 1986) (en banc), cert, denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L. Ed. 2d 496 (1987)). 

6. If it is determined that the position relates to partisan political interests or concerns, then "the next step is to 
examine the particular responsibilities of the position to determine whether it resembles a policymaker, a privy to 
confidential information, a communicator, or some other office holder whose function is such that party affiliation 
is an equally appropriate requirement. . . . [I]n conducting this inquiry, courts focus on the powers inherent in a 
given office, as opposed to the functions performed by a particular occupant of that office." Stott . supra at 142 
(quoting Jimenz Fuentes y^ Torres Gaztambide , 807 F.2d 236, 241-42 (1st Cir. 1986) (en banc), cert, denied, 481 
U.S. 1014, 107 S.Ct. 1888, 95 L. Ed. 2d 496 (1987)). 

7. The classification of "exempt" in North Carolina's personnel scheme should be accorded great deference. Thus the 
burden of proof rests on the Petitioner to show that political affiliation was not necessary or essential to the 
effective performance of his position. Stott y_, Martin , 783 F. Supp. 970 (E.D.N.C. 1992). 

8. In Stott v. Martin , 783 F. Supp. 970, 976 (E.D.N.C. 1992), the court considered the holding in Jimenz Fuentes 
v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986) (en blanc), cert, denied, 481 U.S. 1014, 107 S.Ct. 
1888, 95 L. Ed. 2d 496 (1987) and held: 

Among the indicia relevant to this second inquiry are " 'relative pay, technical 
competence, power to control others, authority to speak in the name of policymakers, 
public perception, influence on programs, contact with elected officials, and responsive- 
ness to partisan politics and political leaders.' " [quoting Ecker y^ Cohalan. 542 F. Supp 
896, 901 (E.D.N. Y. 1982)]. 



305 NORTH CAROLINA REGISTER June 3, 1996 11:5 



CONTESTED CASE DECISIONS 



9. Pursuant to the provisions of Chapter 96 of the North Carolina General Statutes, the Employment Security 

Commission is responsible for collecting and administering unemployment insurance contributions and benefits, 
establishing and maintaining free public employment offices, providing vocational guidance, establishing and 
maintaining an information system that maintains up-to-date job-related information on current and former 
participants in State job training and education programs, evaluating the effectiveness of job training, education, and 
placement programs to determine if specific goals and objectives are attained and making recommendations 
regarding the continuation of State funding for programs evaluated. The responsibilities delegated to ESC "involve 
government decisionmaking on issues where there is room for political disagreement on goals or their 
implementation!.]" Stott y^ Haworth . supra at 141 (quoting Jimenz Fuentes y^ Torres Gaztambide. 807 F.2d 236, 
241-42 (1st Cir. 1986) (en banc), cert, denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L. Ed. 2d 496 (1987)). 

10. The Petitioner's position required that he review sensitive internal operations of ESC. He was also involved in 
recommending, reviewing, and participating in implementing policies and procedures to guide the entire operation 
of ESC. In order to perform the duties of his position, he necessarily had access to confidential information and 
was involved in many confidential communications. In order to perform the responsibilities of the position, the 
Internal Audit Manager has open-ended authority "to access all ESC resources." (R20) 

11. An internal auditing position can be considered either a technical position, involving "politically] neutral, technical 
and professional matters," or one which "has access to confidential information and /or 'great influence in the 
formulation and implementation of policies" of the agency. Morales Morales y^ Rafael Arias . 856 F.2d 396, 398 
(1st Cir. 1988). 

12. The Petitioner was more than a mere "bean counter. " Not only did the Petitioner act as spokesperson on Internal 
Audit matters to other state agencies, he spoke for ESC with the U.S. Department of Labor Regional Office and 
had the authority, according to Chairman Duncan, to speak for ESC with law enforcement agencies. His total 
access to all ESC data, his duty to make investigations and recommendations, his review and investigation of 
sensitive personnel hires, his policy handbook on internal audit matters, as well as his authority to investigate all 
divisions and offices of ESC clearly show he was no technocrat performing purely financial audits. Indeed, his 
connection with financial audits of ESC was to review them and make recommendations to the Chairman's office 
about any needed changes in ESC operations. 

13. Despite whatever actual duties the Petitioner may have performed, as Judge Britt noted in Stott y^ Martin . 783 
F.Supp. 970, 975 when he quoted the following from the Fourth Circuit opinion in Stott \\ Haworth . 916 F.2d 134, 
142 ( 4th Cir. 1990), the focus is on the functions of the position: 

We would note that in conducting this inquiry, courts focus on the powers inherent in a given 
office, as opposed to the functions performed by a particular occupant of that office. 'The 
relevant inquiry is to the function of the public office in question and not the actual past duties of 
the particular employee involved.' 'Thus, if an officeholder performs fewer or less important 
functions than usually attend his position, he may still be exempt form the prohibition against 
political terminations if his position inherently encompasses tasks that make his political affiliation 
an appropriate requirement for effective performance.' (Cites omitted.) So it is, in this 
Petitioner's case, and the Respondents properly designated his position as policy making and were 
within the law in dismissing him from the policy making position he held. 

14. Focusing on the powers inherent in the position the Petitioner held, the Internal Audit Manager I position at the 
Employment Security Commission "has access to confidential information and /or 'great influence in the formulation 
and implementation of policies of the agency." Therefore, the Respondents properly designated his position as 
policy making and were within the law in dismissing him from the policy making position he held. 

RECOMMENDED DECISION 

The designation of the position as exempt should be upheld in that the Petitioner failed to carry his burden of 
proving that his position should not have been designated exempt. 

The Petitioner's dismissal should be upheld since Respondents properly complied with Chapter 126 of the North 
Carolina General Statutes regarding his dismissal. 



11:5 NORTH CAROLINA REGISTER June 3, 1996 306 



CONTESTED CASE DECISIONS 



ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, 
P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statutes section 150B-36(b). 

NOTICE 

Before the agency makes the FINAL DECISION, it is required by North Carolina General Statutes section 150B- 
36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DECISION, and to present written 
arguments to those in the agency who will make the final decision. 

The agency is required by North Carolina General Statutes section 150B-36(b)to serve a copy of the Final Decision 
on all parties and to furnish a copy to the Parties' attorney of record. 

This the 16th day of May, 1996. 



Brenda B. Becton 
Administrative Law Judge 



307 NORTH CAROLINA REGISTER June 3, 1996 11:5 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

95 INS 1411 



DEBORAH B. BEAVERS, 
Petitioner, 



N.C. TEACHERS' AND STATE EMPLOYEES' 
COMPREHENSIVE MAJOR MEDICAL PLAN 
Respondent. 



RECOMMENDED DECISION 



This matter was heard before Administrative Law Judge Dolores O. Nesnow Smith on April 16, 1996, in Durham, 
North Carolina. 

APPEARANCES 

Petitioner: Jolinda Steinbacher 

Attorney at Law 
370 Knollwood Street 
Winston-Salem, NC 27103 

Respondent: Evelyn B. Terry 

General Counsel 

N.C. Teachers & State Employees 
Comprehensive Major Medical Plan 
4905 Creedmoor Road 
Raleigh, NC 27612 

ISSUE 

Did the Respondent err in denying Petitioner's claim for coverage under the State's major medical plan? 

STATUTE AND RULES AT ISSUE 

N.C. Gen. Stat. 135-40. l(la) 

N.C. Gen. Stat. 135-40.4 

N.C. Gen. Stat. 135-40.6(1)(4)(5)(6)(7) and (8) 

WITNESSES 



For Petitioner: 
For Respondent: 

For Petitioner: 
For Respondent: 



Deborah Beavers 
Dr. Craig Fowler 

Harold Wright 

Dr. William Parham 

EXHIBITS 

P#2-P#8 

R#l -R#6 
R#8 - Redacted 
R#9 - Redacted 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



308 



CONTESTED CASE DECISIONS 



R#10 - R#14 

FINDINGS OF FACT 

1. Petitioner is a State employee covered by the State Comprehensive Major Medical Plan (Plan) set forth in 
N.C. Gen. Stat. § 135-40 et seq. 

2. Respondent, through its agent and Claims Processing Contractor, Blue Cross/Blue Shield (BC/BS), denied 
coverage for treatment of a fungal infection of Petitioner's eye. 

3. On September 24, 1993, Petitioner underwent a surgical procedure to correct myopia (near-sightedness) 
in both eyes known as a radial keratotomy. The surgery was performed by Dr. Michael L. Steiner. 

4. Following the radial keratotomy, Petitioner suffered no infection or similar complication. 

5. In order to further improve plaintiffs vision following the initial surgery. Dr. Steiner performed an 
enhancement surgery to the left eye on December 27, 1993. 

6. Sometime thereafter in January 1993, Petitioner developed pain, redness, and decreased vision in the left 
eye. 

7. Petitioner was referred to the Duke Medical Center Department of Ophthalmology on January 19, 1994 
where she was treated by Dr. W. Craig Fowler. 

8. Dr. Fowler is a Board Certified Ophthalmologist who treats patients and teaches as an Assistant Professor 
of Ophthalmology at Duke. 

9. Dr. Fowler has extensive experience in treating various fungal infections of the eye and has performed 
numerous surgeries. 

10. Upon seeing the Petitioner, Dr. Fowler diagnosed a severe infection of the left eye known as fungal keratitis 
and endophthalmitis. He admitted Petitioner to the hospital where she stayed from January 20, 1994 through February 4, 
1994. 

1 1 . Dr. Fowler was unable to control the infection with medication and injections into the eye. He therefore 
performed surgery which included penetrating keratoplasty or an emergency corneal transplantation. 

12. Dr. Fowler continued to follow plaintiff throughout 1994 and on September 14, 1994, further surgery was 
performed including cataract extraction and lens implantation. 

13. Petitioner thereafter recovered fairly well, particularly in light of the severity of the infection which usually 
would have lead to the loss of the eye. 

14. The medical expenses incurred as a result of the infection were in excess of $22,000.00. The exact amount 
of the expense is still under investigation. 

15. The treatment and surgeries which resulted from the fungal infection are the type generally covered by the 
Plan. 

16. Petitioner filed a claim for payment of medical expenses under the Plan through BC/BS. 

17. On September 21, 1994, Petitioner's claim was denied on the grounds that the fungal infection was a 
complication of a non-covered procedure, namely the prior radial keratotomy. 

18. Although the Plan lists a radial keratotomy as a non-covered procedure, nowhere in the Plan as set forth 
in N.C. Gen. Stat. § 135-40 et seq. or in the State Employees' Handbook which explains coverage is it stated that 
complications resulting from non-covered procedures are excluded from coverage. 



309 NORTH CAROLINA REGISTER June 3, 1996 11:5 



CONTESTED CASE DECISIONS 



19. The initial decision to deny Petitioner's claim was made by Dr. Cates, a family physician who works for 
BC/BS and who does not have a background in Ophthalmology. 

20. Dr. Cates' written decision includes no reference to the basis for his determination as to the causal 
relationship between the radial keratotomy and the fungal keratitis. 

21. Following this initial denial of coverage, Petitioner applied for a first level appeal which again was 
considered by BC/BS on behalf of the State. 

22. During this appeal, BC/BS hired an independent outside consultant to review Petitioner's claim. 

23. This independent consultant prepared a written report which was given to BC/BS. 

24. Due to internal policy and contracts with independent consultants, the Respondent and BC/BS refuse to 
reveal the identity of the independent consultant or to provide a copy of his or her report. 

25. The Respondent also did not provide information regarding the outside consultant's credentials, experience, 
or qualifications. 

26. On the basis of the opinion of this undisclosed independent consultant, the Petitioner's first level appeal 
was denied. 

27. After that denial, Petitioner filed a second level appeal. At the second level, Dr. Allen McBride, the then 
Medical Director for BC/BS, gave his recommendation regarding the appeal on April 27, 1995. 

28. Dr. McBride is not an ophthalmologist and his recommendation relied upon the independent consultant's 
report. 

29. Based upon that report, Dr. McBride concluded that the treatment rendered was due to a complication from 
a non-covered radial keratotomy. 

30. During the course of the second level appeal, Dr. William Parham replaced Dr. McBride at BC/BS and 
thus gave his recommendation in the case. 

31. Although Dr. Parham has a medical degree, he has not practiced since 1987. Dr. Parham's area of 
specialty was Internal and Pulmonary Medicine. He has never practiced in the field of Ophthalmology. 

32. Dr. Parham also referred to the independent consultant's report. Dr. Parham was unaware of the name 
or the credentials of the independent consultant. He had, in fact, not seen the consultant's report. 

33. Dr. Parham reviewed the note of Dr. McBride, the statement of Dr. Cates from the first appeal, and a one 
sentence "summary'' of the opinion of the undisclosed consultant which was contained in an interoffice memo. 

34. Based upon this, along with medical records of the treating physician, Dr. Fowler, Dr. Parham also 
recommended that coverage be denied. 

35. During his evaluation of the case, Dr. Parham had a note from Dr. Fowler requesting that they discuss the 
case. 

36. Dr. Parham did not contact Dr. Fowler. 

37. Dr. Parham agreed that if the fungal keratitis was not related to the prior radial keratotomy or enhancement, 
the treatment would be covered under the Plan. 

38. Dr. Parham testified that if Dr. Fowler, as the treating physician, did not relate the fungal infection to the 
prior radial keratotomy, "It would be more difficult for me to come to a comfortable conclusion." 



11:5 NORTH CAROLINA REGISTER June 3, 1996 310 



CONTESTED CASE DECISIONS 



39. Based upon Dr. Parham's recommendation. Petitioner's second level appeal was denied. 

40. Petitioner appealed yet again. At that level of appeal, Deputy Executive Administrator Harold Wright 
gathered information and made a recommendation that Petitioner's claim be denied. 

41. Mr. Wright, the Deputy Executive Administrator for the State Plan has no medical training. 

42. Mr. Wright presented certain documentation along with his summary and recommendation to the Board 
of Trustees. 

43. Mr. Wright had never seen the independent reviewer's report and did not forward the report to the Board 
of Trustees. 

44. In the process of gathering information, Mr. Wright also received a letter from Dr. Fowler, which set forth 
his opinions in the case. 

45. In that letter Dr. Fowler stated: 

It is unfortunate that whoever is reviewing this case does not realize this problem is an infection 
that does not stem from any other problem. It has never been my opinion that this infection was 
not the result of everyday events. 

46. Dr. Fowler further stated: 

It is impossible for me, or in my opinion for any physician, to state with any degree of medical 
certainty that Ms. Beavers' eye infection of January 1994 was caused by or related to the prior 
radial keratotomy or enhancement. Stated conversely, it is impossible for me to state with any 
degree of medical certainty that the infection was not the result of everyday activities and events. 
Although some of my records may refer to a fungal infection "post radial keratotomy, "such 
reference is merely to the time sequence, that is, that the infection occurred after the radial 
keratotomy, and not directly as a result of it. 

47. After receiving the information and recommendation from Mr. Wright, the Board of Trustees again denied 
Petitioner's claim for coverage. 

48. The basis for the denial of Petitioner's claim is that complications from non-covered procedures are not 
covered. This statement is contained in a medical policy developed by BC/BS. 

49. Neither the Comprehensive Major Medical Plan as set forth at N.C. Gen. Stat.§ 135-40 et seq., nor the 
State Employees' Handbook states that complications of non-covered procedures are excluded from coverage. 

50. The Respondent has rule-making authority at G.S. 135-39.8. 

51. There is no rule prohibiting coverage for complications of non-covered procedures. 
Based on the above Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. Benefits under the Plan are paid pursuant to G.S. 135-40 to 135-40.7. 

G.S. 135-40.7 lists the expenses which are not covered by the Plan. Radial keratotomy is listed as a non-covered 
procedure. 

Nowhere in that list of exclusions to medical coverage, or elsewhere in the statute, is it stated that complications 
of a non-covered procedure are not covered. 

2. Respondent contends that the exemption of complications from a non-covered procedure arises from a 

311 NORTH CAROLINA REGISTER June 3, 1996 11:5 



CONTESTED CASE DECISIONS 



"policy" of BC/BS. 

In fact, the statute at G.S. 135-40(b) provides that expenses will not be covered for "costs denied by the claims 
processor as part of its overall program of claim review and cost containment. " 

The North Carolina Court of Appeals reviewed coverage under the Plan in Vass y^ Bdk of Trustees of State 
Em ployees' Medical Plan , 108 N.C. App. 251, 423 S.E. 2d 769 (1992). Therein, the Board of Trustees denied plaintiffs 
claim under the Plan for coverage of a radial keratotomy, which, at that time, was not on the list of exclusions. 

The Court of Appeals found that "nowhere in the list of exclusions to medical coverage is it specifically stated that 
radial keratotomy is not a covered procedure." Id. at 258, 423 S.E. 2d at 754. 

In Vass , as in the case at hand, the Board of Trustees argued that the denial of coverage was based upon a policy 
of the claims processing contractor. In rejecting this basis for denial of coverage, the Court of Appeals held that while the 
claims processing contractor is authorized by G.S. §135-40(b) to determine medical benefits for the Medical Plan, nowhere 
is it suggested that the contractor is authorized to deny benefits other than in conformity with the statutory language in 
N.C.G.S. §§ 135-40.6 to 40.7. 

G.S. 135-40(b) can not be construed to authorize the Claims Processing Contractor to determine benefits other than 
in conformity with the statutory language. 

3. The Board of Trustees of the Plan is an agency under the Administrative Procedures Act (APA, G.S. 150- 

B) and the provisions of the APA apply to the Board. Vass y, Bd. of Trustees of State Employees Medical Plan , 324 N.C. 
402, 379 S.E. 2d 26, (1989). 

In a 1986 Attorney General's opinion it was determined that: 

When 150B-2(8a) and 150B-1 1(1) are read together, it is apparent that any 
procedures, whether formal or informal, that directly or substantially affect the rights or 
procedures of nonagency persons must be adopted as rules . See Opinion of Attorney 
General to Elizabeth H. Drury, Director, Office of Legislative and Legal Affairs, 
Department of Human Resources, 26 NCAC 25 (1989) (Emphasis added)** 

N.C. Gen. Stat. 150B-2(8a) provides, in pertinent part, that: 

(8a) "Rule means any agency regulation, standard, or statement of general 
applicability that implements or interprets an enactment of the General Assembly or 
Congress or a regulation adopted by a federal agency or that describes the procedure or 
practice requirements of an agency. 

G.S. 150B-2(8a)a provides that statements concerning internal management of an agency including policies and 
procedures are exempt from rulemaking provided those statements do not directly or substantially affect the right or duties 
of a person no employed by that agency. 

4. The Policy of the claims processing contractor exempting coverage for complications of a non-covered 
procedure substantially affects those people who are covered by the Plan and must be either a statutory provision or a rule. 
Being neither, it has not effect. 

5. Since there is no binding regulation barring fungal infections or complications of a non-covered procedure, 
it is concluded that Petitioner's claim for benefits for expenses incurred due to the fungal keratitis must be allowed. 

6. It is not necessary to resolve the parties' disagreement over whether the Petitioner's fungal keratitis was 
in fact a complication of the radial keratotomy. 



*N.C. Gen. Stat. 150B-1 1(1) (repealed in 1991) was part of Article 2 of the APA, all of which was repealed in 1991 
and replaced by Article 2A. To a great extent, Article 2A recodified the procedures for rulemaking which had duties 
of a person not employed by that by that agency. 



11:5 NORTH CAROLINA REGISTER June 3, 1996 312 



CONTESTED CASE DECISIONS 



RECOMMENDED DECISION 

The Petitioner's fungal keratitis was covered under the Plan and her claim for benefits must be paid. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P.O. 
Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file 
exceptions to this recommended decision and to present written arguments to those in the agency who will make the final 
decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy 
to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the N.C. Teachers' and State Employees' 
Comprehensive Major Medical Plan. 

This the 9th day of May, 1996. 



Dolores Nesnow Smith 
Administrative Law Judge 



313 NORTH CAROLINA REGISTER June 3, 1996 11:5 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



lhe North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles 
and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major department in 
the North Carolina executive branch of government has been assigned a title number. Titles are further 
broken down into chapters which shall be numerical in order. The other two, subchapters and sections 
are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 


27 


NC State Bar 


Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



11:5 



NORTH CAROLINA REGISTER 



June 3, 1996 



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BARCLAYS OFFICIAL NORTH CAROLINA ADMINISTRATIVE CODE - 1995 



DESCRIPTION 



CODE 



ONE-TIME 

PURCHASE 

PRICE 



ANNUAL 

SUBSCRIPTION 

PRICE 



Title 1 - Dept. of Administration - Full Title 
Division ot Purchase & Contract 
Federal Block Grant Funds 

Title 2 - Dept. of Agriculture - Full Title 
Food & Drug Protection Division 
Structural Pest Control Committee 
Agricultural Markets 
Plant Industry 
Animal Industry 

Title 3 - Dept. of State Auditor - Full Title 

Title 4 - Dept. of Commerce - Full Title 

Alcoholic Beverage Control Commission 

Banking Commission 

Credit Union Division 

Savings & Loan Division 

Industnal Commission/Workers Compensation 

Savings Institutions Division 

Title 5 - Dept. of Corrections ■ Full Title 
Division of Pnsons 

Title 6 - Council of State - Full Title 

Title 7 • Dept. of Cultural Resources - Full Title 

Title 8 - State Board of Elections - Full Title 



201 00 00 
201 10 05 

201 10 33 

202 00 00 
202 15 09 

202 1 5 34 
202 15 43 
202 15 48 

202 15 52 

203 00 00 

204 00 00 

204 1 5 02 
204 15 03 
204 15 06 
204 1 5 09 
204 15 10 

204 15 16 

205 00 00 

205 1 5 02 

206 00 00 

207 00 00 

208 00 00 



S63.00 
$21.00 

s ■ ? e : 

$98.00 
$28.00 
$21.00 
$21.00 
$21.00 
$21.00 

$7.00 



$87.50 


$12.00 


$24.50 


$14.00 


$14.00 


$14.00 


$24.50 


$56.00 


$24.50 



$21.00 



$21.00 



$7.00 



$90.00 
$30.00 
$25.00 

$140.00 
$40.00 
$30.00 
$30.00 
$30.00 
$30.00 

$10.00 

$125.00 
$40.00 
$35.00 
$20.00 
S20.00 
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$35.00 

$80.00 
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$30.00 

$30.00 

$10.00 



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209 00 00 



$31.50 



$45.00 



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Detention Facilities 

Mental Health & Rehabilitation Services 

Social Services 

Children Services/Day Care 

Services for the Aging 

Services for the Blind 

Services for the Deaf & Hard of Heanng 

Employment Opportunities 

Title 11 - Dept. of Insurance - Full Title 

Insurance 

Consumer Services 

Fire & Rescue Services 

Agent Services 

Engineenng & Building Codes 

Title 12 - Dept. of Justice - Full Title 
Private Protective Services 

Police & Shenff's Education & Training Standards 
NC Alarm Systems Licensing Board 

T'rde 13 - Dept. of Labor • Full Title 

Mine & Quarry Safety 

General Safety OSHA 

Wage & Hour Rules 

Boiler & Pressure Vessel Safety 

Apprenticeship & Training 

Elevator & Amusement Device Safety 

Title 14A - Dept. of Crime Control & Public Safety - Full Title 
Alcohol Law Enforcement 
Victims Compensation Fund 



Title 15A - Dept. of Environ. 

Environmental Management 

Air Quality 

Water Quality 

Land & Waste Management 

Solid Waste Management 

Underground Storage Tanks 



Health, & Nat. Resources - Full Title 



210 00 00 
210 20 10 
210 20 20 
210 20 30 
210 20 40 
210 20 41 
210 20 42 
210 20 43 
210 20 44 

210 20 45 

211 00 00 

21 1 10 01 
211 10 04 
211 10 05 
21 1 10 06 

211 10 08 

212 00 00 

212 10 07 
212 10 09 

212 10 11 

213 00 00 
213 15 06 
213 20 00 

213 15 12 
213 15 13 
213 15 14 

213 15 15 

214 00 00 
214 00 08 

214 00 11 

215 00 00 

2 1 5 1 5 00 
215 15 10 
215 15 20 
215 15 30 
215 15 31 
215 15 32 



$346.50 
$45.50 
$31.50 
$77.00 
$119.00 
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$31.50 
$28.00 
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$63.00 
$56.00 
$24.50 
$17.50 
$28.00 
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$63.00 
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$31.50 
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S77.00 
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$31.50 
$14.00 
$14.00 
$14.00 
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$31.50 
$17.50 
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$276.50 
$115.50 
$49.00 
$49.00 
$56.00 
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$495,00 
$65.00 

s4= : " 

$110.00 
$170.00 
$45.00 
$45.00 
$40.00 
$25.00 
$50.00 

$90.00 
$80.00 
$35.00 
$25.00 
$40.00 
$30.00 

$90.00 
$30.00 
$45.00 
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$110.00 
$20.00 
$45.00 
$20.00 
$20.00 
$20.00 
$20.00 

$45.00 
$25.00 
$20.00 

$395.00 
$165.00 
$70.00 
$70.00 
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DESCRIPTION 





ONE-TIME 


ANNUAL 




PURCHASE 


SUBSCRIPTION 


CODE 


PRICE 


PRICE 


216 1540 


$31.50 


$45.00 


215 26 00 


$105.00 


$160.00 


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$42.00 


$60.00 


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$85.00 


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$21.00 


$30.00 


217 00 00 


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$130.00 


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$31.50 


$45.00 


217 15 20 


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$80.00 


217 15 27 


$31.50 


$45.00 


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$21.00 


$30.00 


218 00 00 


$21.00 


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218 1006 


$21.00 


$30.00 


219 00 00 


$63.00 


$90.00 


219 10 02 


$28.00 


$40.00 


219 10 03 


$35.00 


$50.00 


220 00 00 


$31.60 


$45.00 


221 00 00 


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$205.00 


222 00 00 


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$7.00 


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224 00 00 


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299 99 98 


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$750.00 


266 00 00 




$750.00 


266 50 00 


-- 


$250.00 


288 50 00 


$295.00 


$475.00 


288 80 00 


$40.00 


$76.00 


299 90 00 


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Coastal Management 

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Title 16 - Dept. of Public Instruction - Full Title 

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Tide 20 - Dept. of the State Treasurer - Full Trde 

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T'rde 22 - Administrative Procedures Act - Repealed 

T'rde 23 - Dept. of Community Colleges - Full T'rde 

Trde 24 - Independent Agencies - Full Trde 

Trde 25 • Office of State Personnel - Full Trde 

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